ICA affirms concurrent, enhanced sentences

On June 16, 2011, the Hawaii ICA issued its opinion in Gomes v. State, No. 30617 (Summary Disposition Order- unpublished, panel: Nakamura, C.J., Reifurth and Ginoza). This was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto, presiding. The State-Appellee was represented by Richard Minatoya, Esq. and the Appellant represented him self pro se.

Defendant was found guilty of first-degree sexual assault and manslaughter and was sentenced to concurrent extended sentences. Defendant appealed, in part alleging that his sentence was invalid because the enhancement statute in place at the time of his conviction (HRS 706-662) was later ruled to be unconstitutional in State v. Maugaotega, 115 Hawai'i 432 (2007).

In rejecting this argument, the ICA noted that Maugaotega “does not apply retroactively to Gomes’s collateral attack of his extended term sentences.” Further, despite Maugaotega’s holding that 706-662 was unconstitutional, the Hawai’i Supreme Court held in State v. Jess 117 Hawai’i 381 (2008) that subsequent legislative action “clearly endorsed the empanelment of juries to make the requisite extended term findings[.]” Thus, 706-662 may be constitutionally applied when a jury, not a judge, determines whether an enhanced sentence was “necessary for [the] protection of the public.”

The Gomes panel concluded: “The supreme court's holding in Jess, that the former version of HRS § 706-662 may be judicially modified and constitutionally applied, definitively establishes that the former version of HRS § 706-662, under which Gomes was sentenced, is not void ab initio.” The appeal was denied.