State v. Canosa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
08:00 AM
Dkt. 40 MO
NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
STANLEY CANOSA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC091001524)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
This is the third appeal from the underlying criminal
case. In this appeal, Defendant-Appellant Stanley Canosa
(Canosa) appeals from the "Judgment of Conviction and Sentence"
(2020 Judgment) filed on June 4, 2020, the "Amended Judgment of
Conviction and Sentence" (2020 Amended Judgment) filed on July
10, 2020, and the "Order Denying Defendant's Motion to Correct
Illegal Sentence Pursuant to Rule 35(a) of the Hawaii Rules of
Penal Procedure Filed 8/24/20" (Order Denying Motion to Correct
Illegal Sentence) filed on October 21, 2020, all entered by the
Circuit Court of the First Circuit (Circuit Court).1
1
The Honorable Karen T. Nakasone presided.
The appeals from the 2020 Judgment and 2020 Amended Judgment were
consolidated under CAAP-XX-XXXXXXX. Canosa then requested that the
consolidated appeals from the 2020 Judgment and 2020 Amended Judgment be
consolidated with the appeal from the Order Denying Motion to Correct Illegal
Sentence, which this court granted and consolidated under CAAP-XX-XXXXXXX.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In Canosa's first trial, the jury found him guilty of
Burglary in the First Degree, in violation of Hawaii Revised
Statutes (HRS) § 708–810(1)(c) (2014); Sexual Assault in the
First Degree, in violation of HRS § 707–730(1)(a) (Supp. 2013);
and Unauthorized Entry in a Dwelling, in violation of HRS
§ 708–812.6 (Supp. 2010). He was sentenced to serve an extended
term of imprisonment of twenty years for burglary, life with the
possibility of parole for sexual assault, and ten years for
unauthorized entry in a dwelling, all to run concurrently. The
convictions were vacated by this court in Canosa's first appeal.
State v. Canosa (Canosa I), No. CAAP–11–0001051, 2014 WL 503045(Haw. App. Feb. 7, 2014) (mem.).
On remand, he was convicted in a second jury trial of
Burglary in the First Degree (Count 1) and Unauthorized Entry in
a Dwelling (Count 3) (2016 Judgment). During the sentencing
phase of the second trial, the jury made findings as to both
Count 1 and Count 3 that the State had proven beyond a reasonable
doubt that: Canosa was a persistent offender (in that he had
previously been convicted of two or more felonies committed at
different times when he was 18 years of age or older); Canosa was
a multiple offender (in that he was being sentenced for two or
more felonies); and extended sentencing was necessary to protect
the public. In the 2016 Judgment, Canosa was thus sentenced in
Count 1 to an extended term of twenty (20) years, and in Count 3
to an extended term of ten (10) years. The Circuit Court imposed
the sentences to run consecutively.
In the second appeal, this court affirmed Canosa's
conviction in the second trial, but vacated his new sentence on
grounds that consecutive sentencing resulted in the new sentence
being more severe for Counts 1 and 3 following retrial than the
initial sentence, in violation of HRS § 706-609. The case was
again remanded, this time only for resentencing. State v. Canosa
(Canosa II), No. CAAP-XX-XXXXXXX, 2018 WL 1889511 (Haw. App. Apr.
20, 2018) (SDO).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On further remand, the Circuit Court resentenced Canosa
in Count 1 to an extended term of twenty years, and in Count 3 to
an extended term of ten years, with these terms to run
concurrently. On July 10, 2020, the 2020 Amended Judgment was
entered, apparently to address clerical errors in the 2020
Judgment.2 On October 21, 2020, the Circuit Court entered its
Order Denying Motion to Correct Illegal Sentence.
Now, in this third appeal, Canosa contends the Circuit
Court erred by: (1) resentencing him in the 2020 Judgment and
2020 Amended Judgment to extended sentences after the maximum
penalty prescribed by law for the underlying convictions in
Counts 1 and 3 had already expired; and (2) denying his motion to
correct the 2020 Amended Judgment.
We conclude the Circuit Court properly exercised its
authority to resentence Canosa to extended terms of imprisonment
in Counts 1 and 3, with each sentence to run concurrently. We
therefore affirm the 2020 Amended Judgment and the Order Denying
Motion to Correct Illegal Sentence.
I. Background
As summarized above, there have been two trials in this
criminal case, and this is the third appeal.
A. First Trial and First Appeal
Canosa was indicted in 2009 on five counts: Burglary in
the First Degree (Count 1); Sexual Assault in the First Degree
(Count 2); Unauthorized Entry in a Dwelling (Count 3); and Sexual
Assault in the Third Degree (Counts 4 and 5).3
In the first trial, Canosa was convicted of Burglary in
the First Degree (Count 1), Sexual Assault in the First Degree
(Count 2), and Unauthorized Entry in a Dwelling (Count 3). See
2
In the 2020 Judgment, the Circuit Court resentenced Canosa to
concurrent extended terms of imprisonment of twenty years in Count 1 and ten
years in Count 2. However, the extended ten years of incarceration actually
pertained to Count 3. Thus, the 2020 Amended Judgment reflects an extended
sentence of ten years for Count 3.
3
The complaining witness was the same person in Counts 1 through 3,
but there were different complaining witnesses for Counts 4 and 5.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Canosa I. Canosa was acquitted with respect to Counts 4 and 5.
Id. After the first trial, Canosa was sentenced to an extended
term of imprisonment of twenty years in Count 1, Life with the
Possibility of Parole in Count 2, and an extended term of ten
years in Count 3, to run concurrently (2011 Judgment).
In the first appeal to this court, Canosa raised
numerous arguments, including that the prosecuting attorney
improperly commented during closing argument about a $75 debt
Canosa owned to a complaining witness's boyfriend, which was not
in evidence. Id. at 5. Because the prosecution argued facts not
in evidence to undermine the defense theory of the case, this
court held the improper statement was not harmless beyond a
reasonable doubt. Id. at 5-6. Thus, the 2011 Judgment was
vacated and we remanded for a new trial on Counts 1, 2, and 3.
Id. at 6. The Hawai#i Supreme Court subsequently rejected
Canosa's application for a writ of certiorari. State v. Canosa,
No. SCWC–11–0001051, 2014 WL 2765222, at *1 (Haw. June 17, 2014).
B. Second Trial and Second Appeal
On remand, a second trial was held and Canosa was
convicted on Counts 1 and 3 (2016 Judgment).4 As noted above,
during the sentencing phase of the second trial, the jury made
findings as to Counts 1 and 3 to support extended sentences on
both counts. Canosa was sentenced to an extended sentence of
twenty years for Count 1 and an extended sentence of ten years
for Count 3, with the Circuit Court imposing the sentences to run
consecutively.
In his second appeal, Canosa argued, among other
things, that the Circuit Court erred "by sentencing him to
extended and consecutive terms of imprisonment, by imposing a new
sentence that is more severe following retrial in violation of
HRS § 706–609 (2014)[.]" Canosa II, 2018 WL 1889511 at *2. We
noted, however, that Canosa did not "challenge the Circuit
Court's authority to impose either extended or consecutive terms
4
Count 2 was dismissed without prejudice because the jury was hung.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
nor does he dispute that the jury found the State proved beyond a
reasonable doubt that Canosa was a multiple offender and that it
was necessary for the protection of the public to extend his
sentences." Id. (citing HRS § 706–662 (2014) and HRS § 706–664
(2014)).
We determined that the Circuit Court did not abuse its
discretion in sentencing Canosa to extended terms, given that
"the jury made the required factual findings under HRS
§ 706–662[.]"5 Id. at *3. We also determined the lower court
did not abuse its discretion by sentencing Canosa to consecutive
terms of imprisonment "[g]iven that the Circuit Court articulated
on the record" that "it considered the HRS § 706–606 factors and,
after doing so, concluded that '[Canosa] has shown himself to be
a danger to the community.'" Id. (second alteration in
original).
However, we concluded that:
while the individual prison terms imposed for each
count in the second sentence were identical to those
imposed in the first sentence, due to the imposition
of consecutive terms in Canosa's second sentence, the
maximum possible imprisonment was increased from
twenty to thirty years. Therefore, Canosa's second
sentence was more severe and violated HRS § 706–609,
and we must remand.
5
HRS § 706–662 (2014) provides, in relevant part:
A defendant who has been convicted of a felony may be
subject to an extended term of imprisonment under section
706-661 if it is proven beyond a reasonable doubt that an
extended term of imprisonment is necessary for the
protection of the public and that the convicted defendant
satisfies one or more of the following criteria:
(1) The defendant is a persistent offender in that the
defendant has previously been convicted of two or more
felonies committed at different times when the defendant was
eighteen years of age or older;
. . . .
(4) The defendant is a multiple offender in that:
(a) The defendant is being sentenced for two or more
felonies or is already under sentence of
imprisonment for any felony[.]
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Id. (emphasis added) (citing Keawe v. State, 79 Hawai#i 281, 901
P.2d 481 (1995); State v. Samonte, 83 Hawai#i 507, 543, 928 P.2d
1, 37 (1996)). Accordingly, we vacated the Circuit Court's 2016
Judgment "to the extent it impose[d] consecutive sentences in
violation of HRS § 706-609 and remand[ed] for resentencing[.]"
Id. at *4. The Hawai#i Supreme Court rejected Canosa's
application for a writ of certiorari on this second appeal.
State v. Canosa, No. SCWC–16–0000497, 2019 WL 258698, at *1 (Haw.
Jan. 18, 2019).
C. Resentencing Hearing and Current Appeal
On further remand, in light of Canosa II, the State
requested concurrent extended terms for resentencing Canosa. By
the time Canosa was being resentenced, on June 4, 2020, Canosa
had served over ten years in prison, having been incarcerated
since his arrest on September 22, 2009. At the resentencing
hearing, although represented by counsel, Canosa requested and
the Circuit Court allowed, Canosa to speak on his own behalf
because he did not agree with the argument his counsel was
making. When permitted to speak, Canosa argued he had been
prejudiced because he was not resentenced before the maximum ten-
year and five-year sentences on Counts 1 and 3, respectively, had
expired on September 22, 2019 (calculated from his arrest on
September 22, 2009). In particular, Canosa argued this delay,
resulting in the expiration of the ordinary term of imprisonment
prescribed by HRS § 706-660, prohibited him from arguing for
mitigation and/or allocution of his sentence. Due to this
prejudice, Canosa believed he should have been released.
In response, the Circuit Court stated:
One of the objections defendant raised is the delay.
And there was a delay from the time that the Supreme
Court rejected certiorari from January 2019 to the
time the sentencing -- we began to try to schedule --
try to reschedule this resentencing. So you know, Mr.
Canosa, I can tell you that it's unfortunate that the
delay occurred. But the fact that there was a delay in
having this resentencing -- and this is my ruling --
does not mean that in any way that the Court cannot
legally resentence you or that the State -- there's
any kind of waiver by the State. And the Court's
ruling is that the fact that there was a delay in
coming to this resentencing does not mean that there
is an infirmity with the Court proceeding with
sentencing today.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The Circuit Court proceeded to rule that "[t]he Court retains
jurisdiction, the power, the authority, and the duty to
resentence defendant in accordance with the directive of the
appellate court. So that is the ruling on the delay objection."
The Circuit Court continued to explain:
Defendant argued today and in his written
pleading that the extended terms cannot be imposed
because the ordinary maximum term already expired. And
he argues that it's logically impossible to extend a
sentence that is already expired and does not exist.
This Court interprets the remand as having
vacated the prior sentences and the ICA remanded it
back here for resentencing consistent with the
appellate court order. Defendant's status is post
conviction pending resentencing, and the Court retains
jurisdiction to resentence.
So the ICA's [2018] order vacated the June
27, 26 [sic] sentence with an order to resentence. So
this Court – my conclusion is that the 2016 sentence
is vacated. Defendant's pending sentencing. He is
being held on existing trial custody orders. He is
receiving all jail credit he's entitled to on Counts 1
and 3.
The vacated sentence does not mean that
the ordinary sentence for Counts 1 and 2 [sic] was
still running. And it doesn't mean that the ordinary
sentence was running and expired and can no longer
exist. So the Court rejects that argument that the
Court can no longer sentence defendant to extended
term because the ordinary sentence has run.
This argument -- the Court's ruling is
that this argument made by the defense is premised on
the erroneous legal assumption that the ordinary
sentences are still in effect and are running. And
that's not the case.
So for these reasons, the objections are
rejected and overruled. I've made my ruling.
(Emphases added.)
Prior to resentencing, the Circuit Court allowed Canosa
to make a statement, during which he continued to present
arguments for the court's consideration and resulting in the
following dialogue:
[Canosa]: . . . . I not mistaken, I heard you say that the
ordinary terms was not running while I was waiting for
resentence. That's -- that don't sound like my right,
with all due respect. The thing -- you cannot stop the
time.
The Court: It's not stopped.
[Canosa]: No. But the ordinary time; right? The ordinary terms
prescribed by –
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The Court: Time is running because you're getting credit.
[Canosa]: Right, okay.
The Court: But there's no sentence yet. You're pending.
[Canosa]: . . . . But -- but the time still run. And before you
was able to sentence me, that time expired, the
ordinary terms. And one extended term is in essence
extending the ordinary sentences beyond the statutory
terms. And once that expired, I mean, what is there to
extend?
. . . .
The Court: I understand your argument, Mr. Canosa. I don't agree
with it. And I don't think that's what the law says,
so I made my ruling, you made your argument. You can
take it up later. Okay?
As to sentencing, the Circuit Court stated:
So based on the persistent offender -- based on the
persistent offender status and that extended terms
were necessary for the protection of the public, the
Court finds that the extended terms are appropriate,
that it constitutes just punishment, and that they are
necessary to protect the public.
The terms will run concurrent. It is the judgment and
sentence of the Court that defendant will committed
[sic] to the custody and care of the department –-
Director of the Department of Public Safety for
indeterminate terms of imprisonment as follows:
Count 1, 10 years extended to 20 years in the
Burglary.
Count 3. UED, 5 years extended to 10 years.
Terms to run concurrent. Defendant is to receive all
credit for time served.
Following the resentencing hearing, the Circuit Court
entered the 2020 Judgment on June 4, 2020, and the 2020 Amended
Judgment on July 10, 2020. On August 24, 2020, Canosa filed a
motion to correct illegal sentence pursuant to Hawai#i Rules of
Penal Procedure (HRPP) Rule 35. On October 21, 2020, the Circuit
Court filed the Order Denying Motion to Correct Illegal Sentence.
Canosa appealed separately from the 2020 Judgment
(resulting in CAAP-XX-XXXXXXX), the 2020 Amended Judgment
(resulting in CAAP-XX-XXXXXXX), and the Order Denying Motion to
Correct Illegal Sentence (resulting in CAAP-XX-XXXXXXX). We then
consolidated the appeals.
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
II. Standard of Review
"[A] sentencing judge generally has broad discretion in
imposing a sentence." Keawe v. State, 79 Hawai#i 281, 284, 901
P.2d 481, 484 (1995), amended (Oct. 2, 1995) (citations omitted).
Moreover, "[t]he authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apparent abuse of discretion or
unless applicable statutory or constitutional commands have not
been observed." State v. Gaylord, 78 Hawai#i 127, 143-44, 890
P.2d 1167, 1183-84 (1995) (quoting State v. Valera, 74 Haw. 424,
439, 848 P.2d 376, 383, reconsideration denied, 74 Haw. 650, 853
P.2d 542 (1993)).
"The applicable standard of review for sentencing or
resentencing matters is whether the court committed plain and
manifest abuse of discretion in its decision." Keawe, 79 Hawai#i
at 284, 901 P.2d at 484 (citations omitted). "Generally, to
constitute an abuse it must appear that the court clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant." State v. Kumukau, 71 Haw. 218, 227, 787 P.2d 682, 688
(1990) (quoting State v. Sacoco, 45 Haw. 288, 292, 367 P.2d 11,
13 (1961)).
III. Discussion
A. The Circuit Court had authority to resentence Canosa to
extended terms following Canosa II
In the instant appeal, Canosa argues the Circuit Court
erred by "extending the expired ordinary terms of imprisonment
prescribed by H.R.S., 706-660[6] for both . . . [Counts 1 and 3]
convictions without being authorized by statute[.]" In other
words, Canosa asserts that because Count 1 was a class B felony,
HRS § 706-660 prescribes an "ordinary term" of ten years
6
HRS § 706-660 (1993) provides that the maximum term of imprisonment
for a class B felony is ten years and the maximum term of imprisonment for a
class C felony is five years.
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
imprisonment, and because Count 3 was a class C felony, HRS
§ 706-660 prescribes an "ordinary term" of five years
imprisonment. Canosa further contends that, by the time he was
resentenced in 2020, he had fulfilled the "ordinary term" for
both Counts 1 and 3 because he had been incarcerated since
September 22, 2009, and thus his "ordinary term" for Count 1
expired on September 22, 2019, and his "ordinary term" for Count
3 expired on September 22, 2014.7 Canosa thus contends the
Circuit Court did not have statutory authority to resentence him
because that authority ended when his maximum ordinary sentences
for Counts 1 and 3 were served, and accordingly, "there was no
underlying sentence to extend . . . after September 22, 2019" and
by extending his sentences the Circuit Court punished him twice
for the same offense under principles of double jeopardy.
To the contrary, the State argues based on Canosa II
that it is law of the case that the Circuit Court had authority
to extend Canosa's terms of imprisonment. The State cites the
language in Canosa II that states "[g]iven that the jury made the
required factual findings under HRS § 706–662 [2014], it was
within the Circuit Court's discretion to sentence Canosa to
extended terms of imprisonment." Canosa II, 2018 WL 1889511 at
*3. The State further points to the explicit disposition in
Canosa II in which this court vacated the 2016 Judgment only "to
the extent it imposes consecutive sentences in violation of HRS
§ 706–609" and remanded "for resentencing consistent with this
summary disposition order." Id. at *4. The State thus argues
the only portion of the 2016 Judgment that was vacated was the
consecutive sentences, and thus, the Circuit Court had the
authority to resentence Canosa consistent with Canosa II.
7
When Canosa was resentenced after the second trial in 2016, he did
not assert he had already served the "ordinary" five year term for Count 3 by
September 22, 2014, such that the Circuit Court lacked authority in 2016 to
sentence him for an extended ten years on Count 3. At a minimum, therefore,
his argument as to Count 3 is waived.
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
We conclude the Circuit Court retained authority on
remand in 2020 to resentence Canosa to extended terms on Counts 1
and 3, regardless of whether the time under an ordinary maximum
sentence for his convictions would have expired by the time of
resentencing. At no time in this case was Canosa sentenced to an
ordinary maximum sentence under HRS § 706-660 for Counts 1 and 3.
Rather, his sentences on Counts 1 and 3 have always been for
extended term sentences, including under the 2016 Judgment. We
agree with the Circuit Court's reasoning during the 2020
resentencing that when Canosa's second sentence under the 2016
Judgment was vacated, "[h]is status, in essence, reverted to that
of an unsentenced felon." State v. Keck, Nos. 29530, 29531, 2010
WL 4491240, at *1 (Haw. App. Nov. 10, 2010). Notably, Canosa
fails to cite authority, and we fail to find any, stating that a
defendant's sentence automatically defaults to the statutory
maximum term for the convicted crime when the defendant's
consecutive extended sentences have been vacated and the case is
remanded for resentencing.
To support his argument, Canosa relies on Ex parte
Lange, 85 U.S. 163 (1873). However, this case is inapposite.
Focusing on the right to be free from punishment for the same
crime twice, the defendant in Lange was sentenced to one year
imprisonment and payment of two hundred dollars even though the
defendant was only liable for imprisonment of no more than one
year imprisonment or a fine of no more than two hundred dollars.
Id. at 175. After the defendant had paid the two hundred dollars
and had served five days of the one-year sentence, the trial
court then changed the judgment and sentenced the defendant to
one year imprisonment from that time. Id. If the trial court's
judgment had been permitted to stand, the defendant would not
only have been excessively sentenced to a two hundred dollar fine
and one year and five days of imprisonment, but would have been
punished twice since he had already fulfilled one of the
allowable alternative punishments by paying the two hundred
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
dollar fine. Id. at 175-78. Given these circumstances, the U.S.
Supreme Court discharged the defendant. Id. at 178.
Lange is not similar to this case in any material
respect and does not support Canosa's claim that he is being
subjected to double jeopardy. The statute involved in Lange
allowed for only one of the alternative punishments, the
defendant was sentenced to both and then fulfilled one of them,
before being resentenced to the other alternative. Here, HRS
§ 706–662 authorizes extended sentences for Counts 1 and 3, the
jury after the second trial made the necessary findings such that
extended sentencing under HRS § 706–662 was proper for Counts 1
and 3, and in Canosa II this court already recognized that
extended sentencing for Counts 1 and 3 was proper. This was the
status of the case when the case was again remanded pursuant to
Canosa II for resentencing. Thus, in sentencing Canosa to
extended terms on Counts 1 and 3, to run concurrently, the
Circuit Court was properly imposing a sentence that was
authorized by HRS § 706–662 and which was consistent with the law
of the case under Canosa II.
We further note that Lange has been expressly limited
in subsequent cases, including by the United States Supreme
Court. See Jones v. Thomas, 491 U.S. 376, 383 (1989) (stating
that "Lange therefore stands for the uncontested proposition that
the Double Jeopardy Clause prohibits punishment in excess of that
authorized by the legislature[.]" (citing United States v.
DiFrancesco, 449 U.S. 117, 139 (1980)).
Moreover, contrary to Canosa's argument, he never
fulfilled the ordinary maximum terms on Counts 1 and 3 because he
was never sentenced to the ordinary maximum terms for those
counts. Lange is distinguishable. The Circuit Court did not
punish Canosa for the same crime twice upon resentencing him in
2020, and Canosa's extended sentence in 2020 was not in excess of
what was authorized by statute.
We also decline to read HRS § 706-600 (2014) to limit
the Circuit Court's resentencing authority. Canosa would have
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
this court interpret HRS § 706-600, which provides "[n]o sentence
shall be imposed otherwise than in accordance with this
chapter[,]" to mean that the Circuit Court's "power [to extend
his sentences] ended when the maximum sentences for each
conviction were served[.]" However, it would be absurd for
sentences to default to the statutory maximum term while
defendants await resentencing upon successfully exercising their
right to appeal, especially when a jury makes the necessary
findings that a defendant meets the criteria for extended terms
of imprisonment. Cf. State v. Haugen, 104 Hawai#i 71, 77, 85 P.3d
178, 184 (2004) (concluding an absurdity would result if the
court applied a statute on sentencing for first-time drug
offenders to a defendant with a prior drug conviction in another
state). Thus, we decline to interpret HRS § 706-600 in the
manner argued by Canosa.
Because we conclude the Circuit Court did not err in
resentencing Canosa in 2020, there was no error when the Circuit
Court denied Canosa's motion to correct his sentence.
B. Canosa's Assertions of Plain Error at Oral Argument
At oral argument,8 Canosa asserted for the first time
that the Circuit Court committed plain error by resentencing him
to extended sentences without requiring the State to prove that
he still remained a danger to the public at the time of
resentencing,9 and because Canosa was prejudiced by the State's
delay in seeking to resentence him after Canosa II was issued and
the supreme court denied his application for writ of certiorari
on January 18, 2019.
8
Oral argument was held on April 20, 2022.
9
Canosa briefly asserted in his Opening Brief that the "extended
sentence was an abuse of discretion as the State did not prove that [he] was a
danger to the public." Canosa failed to raise this issue as a point of error
or provide any substantive argument, in violation of Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(4) and (7). Nonetheless, as Canosa
confirmed at oral argument, he does not contest that after the second jury
trial, in the sentencing phase, the jury found beyond a reasonable doubt that
he is a persistent offender, a multiple offender, and that extended sentencing
was necessary to protect the public. See HRS § 706-662.
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Canosa's first new argument was never previously raised
and was therefore waived. Further, Canosa provides no relevant
authority for this new argument, essentially that the Circuit
Court committed plain error by not requiring the State to convene
a new jury during the 2020 resentencing to prove the facts
necessary for extended sentencing under HRS § 706-622 at that
time. At oral argument, Canosa apparently asserted that United
States v. Booker, 543 U.S. 220 (2005) supports this new argument.
Booker addresses the Sixth Amendment requirement that a jury make
findings as to particular facts that the law makes essential to a
defendant's punishment. 543 U.S. at 230-232. However, Booker
does not support Canosa's proposition that, although a jury in
2016 already made the necessary findings for his extended
sentencing under HRS § 706-662, the passage of four years
required that a new jury make the necessary findings for extended
sentencing when Canosa was resentenced in 2020.10
Canosa's second new argument at oral argument was that
he was prejudiced because the State delayed his resentencing
after Canosa II was issued and the Hawai#i Supreme Court rejected
Canosa's application for certiorari on January 18, 2019. Canosa
was not resentenced by the Circuit Court until June 4, 2020, over
sixteen months after certiorari was denied in Canosa II. Canosa
asserts a variety of harms related to his possible parole being
impacted and his inability to obtain services while incarcerated,
among other harms due to the delay. However, this argument was
never made to the Circuit Court and there is nothing factually in
the record on which Canosa can rest this argument. Further, the
State had no ability to anticipate this argument being raised at
oral argument. Therefore, this argument is deemed waived for
purposes of this appeal, but without prejudice to Canosa raising
this argument in a HRPP Rule 40 petition.
10
We also note that in Canosa II, this court had already held that
Canosa's extended sentencing was proper given the jury findings in 2016.
Canosa II, 2018 WL 1889511 at *3.
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
IV. Conclusion
For these reasons, we affirm the "Amended Judgment of
Conviction and Sentence" filed on July 10, 2020, and the "Order
Denying Defendant's Motion to Correct Illegal Sentence Pursuant
to Rule 35(a) of the Hawaii Rules of Penal Procedure Filed
8/24/20" filed on October 21, 2020, by the Circuit Court of the
First Circuit. However, Canosa may pursue his claim of prejudice
due to the delay in his 2020 resentencing through a HRPP Rule 40
petition.
DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Shawn A. Luiz,
for Defendant-Appellant /s/ Katherine G. Leonard
Associate Judge
Stephen K. Tsushima, (Sonja P.
McCullen on the brief), /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee
15