Fukusaku v. State, 2012 Haw. App. LEXIS 360

Fukusaku was convicted of two counts of second-degree murder and sentenced to consecutive life terms with parole; each count carried a 15-year firearm minimum, yielding a 40-year aggregate minimum set by HPA.
Hawai`i Supreme Court vacated the firearm mandatory minimums on appeal and remanded for resentencing without those minimums.
On remand, Fukusaku was resentenced to two consecutive life terms with parole, but without mandatory minimums; HPA later set minimum terms at 25 years per count, totaling 50 years aggregate.
The February 24, 2005 HPA order increased the aggregate minimum term without presenting new information, basing the decision on 'Nature of Offense'.
Fukusaku filed HRPP Rule 40 Second Petition challenging the increased minimum terms as arbitrary and capricious; Circuit Court denied without a hearing.
Hawaii ICA held that the Second Petition presented colorable claims, vacated the denial, and remanded for a hearing to determine arbitrariness or vindictiveness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the Second Petition present a colorable claim to require a hearing?	Fukusaku argued HPA acted arbitrarily and capriciously by increasing minimums after resentencing.	State contends no colorable claim since no new information justified the increase.	Yes; petition raised colorable claims requiring a hearing.
Does Pearce vindictiveness apply to HPA minimum-term increases after resentencing?	Fukusaku sought protection from vindictive motive for challenging the initial sentence.	Pearce is inapplicable to HPA minimum-term settings post-resentencing; no triggering event.	Pearce presumption does not apply; the issue centers on arbitrariness/vindictiveness proven at hearing.
Is HRS § 706-609 applicable to HPA minimum-term increases after resentencing?	Increased minimums may violate statutory protections against harsher penalties after relief.	Keawe distinguishes sentencing from parole determinations; § 706-609 does not directly apply to minimum terms.	§ 706-609 does not directly apply to HPA actions; due process requires justification in the record.

North Carolina v. Pearce, 395 U.S. 711 (1969) (due process protects against vindictiveness after successful appeal; reasons must appear on record)
United States v. Goodwin, 457 U.S. 368 (1982) (Pearce presumption is rebuttable; applies where vindictiveness is reasonably likely)
Texas v. McCullough, 475 U.S. 134 (1986) (presumption can be overcome by objective information; actual vindictiveness may be shown)
Colten v. Kentucky, 407 U.S. 104 (1972) (two-tiered system and vindictiveness considerations in post-release context)
Keawe v. State, 79 Hawai`i 281 (1995) (distinguishes sentencing from parole; § 706-609 not directly applicable to HPA minimum terms)
Coulter v. State, 116 Hawai`i 181 (2007) (arbitrary or capricious minimum-term determinations violate uniformity goals)
Williamson v. Hawaii Paroling Auth., 97 Hawaii 183 (2001) (due process concerns when HPA acts arbitrarily to set or adjust minimum terms)
Dan v. State, 76 Hawai`i 423 (1994) (de novo review standard for Rule 40 petition denial without hearing)
Nulph v. Cook, 333 F.3d 1052 (9th Cir. 2003) (Pearce vindictiveness applied where triggering event exists)