Flubacher v. State., 414 P.3d 161

Background

Robert Flubacher pleaded guilty to multiple felonies in 2001–2002 and received extended-term sentences under Hawai‘i’s HRS §§ 706-661, 706-662; sentences became final October 13, 2003.
State obtained extended terms after a judge (not a jury) found that extended sentences were "necessary for protection of the public."
In 2014 Flubacher filed an HRPP Rule 40 petition asserting his extended terms were illegal under Apprendi v. New Jersey because the judge, rather than a jury, made the factfinding that increased his statutory exposure.
The circuit court denied relief (finding Loher and related precedent controlled); the ICA affirmed. On certiorari the State conceded extended terms imposed after June 26, 2000 that rested on judicial findings of "necessary for protection of the public" violate Apprendi.
The Hawai‘i Supreme Court concluded Apprendi plainly invalidated Hawai‘i’s extended-term procedure as applied here, vacated the extended-term portions of Flubacher’s sentences, and remanded for further proceedings (including the State’s ability to seek a jury determination on remand).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether extended-term sentences imposed after June 26, 2000 are illegal under Apprendi when judge, not jury, finds facts increasing sentence	Flubacher: judicial findings used to impose extended terms violate Apprendi and must be submitted to a jury	State: prior Hawai‘i precedent (Kaua/Loher) and retroactivity rules preclude collateral relief for sentences finalized in 2003; legal clarity came later (Blakely/Booker)	Court: Apprendi controls; judicial factfinding that increases maximum exposure (other than prior conviction) is unconstitutional — extended terms thus illegal; prior contrary Hawai‘i precedent overruled
Whether Flubacher waived his claim by not raising it on direct appeal	Flubacher: HRPP Rule 40 exempts illegal sentence claims from waiver; claim is timely/cognizable	State: claims waived on collateral review; Blakely/Booker not retroactive	Court: did not rely on waiver because it found the sentence illegal and remanded for resentencing; Rule 40 illegal-sentence exception applies
Whether facts relied on by judge (e.g., allegation Flubacher hit a victim with a hammer) were properly considered	Flubacher: judge relied on false facts and improper judicial notice in imposing extended term	State: those factual claims were waived and, alternatively, supported by the record	Court: did not decide waiver last issue because extended-term finding invalidated; remand for proceedings consistent with opinion
Scope of relief on remand — whether extended term can be re-sought	Flubacher: sought vacatur and resentencing without exposure to extended term	State: may re-seek extended term with jury factfinding if warranted	Court: vacated extended-term portions; remanded — State may seek extended term and jury may be empaneled on remand per Jess and related guidance

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (fact that increases penalty beyond statutory maximum must be found by jury beyond reasonable doubt)
Blakely v. Washington, 542 U.S. 296 (application of Apprendi to state sentencing schemes that increase maximum based on judge-found facts)
United States v. Booker, 543 U.S. 220 (Apprendi principles in context of federal sentencing guidelines)
Cunningham v. California, 549 U.S. 270 (rejection of California’s judge-found aggravating factors that increased permissible sentence)
State v. Kaua, [citation="102 Hawai'i 1"] (Haw. 2001) (Haw. court’s prior intrinsic/extrinsic analysis authorizing judge-found extended-term factors; later overruled)
State v. Maugaotega, [citation="115 Hawai'i 432"] (Haw. 2007) (court acknowledged tension with Cunningham; part of the line of Hawai‘i cases revisited)
Loher v. State, [citation="118 Hawai'i 522"] (Haw. App. 2008) (ICA decision holding Blakely/Booker not retroactive on collateral review; court here limits its precedential effect)