Garcia v. StateGarcia v. State
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We hold that the recalculation by the Hawai‘i Paroling Authority (HPA), of credit for pre-sentence detention (presentence credit) of Petitioner/Petitioner-Appellant David Garcia, aka Howard Garcia (Petitioner), pursuant to State v. Tauiliili, 96 Hawai‘i 195, 200, 29 P.3d 914, 919 (2001), that extended the earliest date at which Petitioner was eligible for release, did not violate (1) the Ex Post Facto Clause of the United States Constitution; (2) due process under the United States Constitution or the Hawai‘i Constitution; or (3) principles regarding the retroactive application of judicial decisions espoused by this court. We accepted Petitioner’s application for writ of certiorari (Application) in this ease because (1) similar issues regarding the retroactive application of Tauiliili, have been previously raised to and rejected by this court, 1 (2) there is no governing authoritative case regarding the retroactive application of Tauiliili inasmuch as the ICA’s judgments in that regard have been by way of summary disposition orders, see Killion, 2009 WL 484411, at *1, and Garcia v. State, No. 29725, 2010 WL 2513357, at *1 (App. Jun. 23, 2010) (SDO), and (3) Tauiliili did not discuss whether applying that decision retroactively would violate the prohibition against ex post facto laws, due process, or principles regarding the retroactive application of judicial decisions, as espoused by this court. We affirm the judgment of the ICA, see Garcia, 2010 WL 2513357, at *1, on the grounds set forth herein.
I.
A.
The following essential matters, some verbatim, are from the record and the submissions of the parties.
Hawai‘i Administrative Rules (HAR) § 17-1204-17, 2 promulgated in 1985, provided:
17-1204-17 Credit application towards minimum sentence expiration date for sentenced felons.
(a) Presentence credit accumulated by a sentenced felon offender shall be deducted from the offender’s minimum sentence expiration date set by the paroling authority.
(b) Upon the establishment of an adjusted minimum sentence expiration date, the paroling authority shall forward a facsimile copy of the expiration date to the corrections division office having custodial jurisdiction over the offender and the agency.
(c) The expiration date shall be the earliest date when the sentenced felon offender can be released from a correctional facility prior to and upon further action by the paroling authority.
(Emphases added.)
3
On October 21, 1997, Petitioner pled guilty to five counts of Robbery in the Second Degree pursuant to a plea
On March 3, 1998, Petitioner was sentenced by the trial court (sentencing court), 5 in accordance with the plea agreement, as follows: (1) an indeterminate term of ten years with a mandatory minimum term of three years and four months for count I; (2) an indeterminate term of ten years for each of the four remaining counts (counts II-V), to run concurrently with each other; (3) the sentence for count I to run consecutively to the concurrent sentences for the four remaining counts; and (4) credit for presentence detention beginning October 22,1995.
On October 12, 1998, the HPA issued a Notice and Order Fixing Minimum Term(s) of Imprisonment, setting the minimum term for each count at seven years. The Notice listed October 22, 2002, as the earliest date of release for counts II through V, and June 12, 2007, for count I. It is apparent that Petitioner received presentence credit under each of the five counts.
Then, on August 9, 2001, this court held in
Tauiliili,
96 Hawai‘i at 200, 29 P.3d at 919, that pursuant to Hawai‘i Revised Statutes (HRS) § 706-671,
6
where consecutive sentences are imposed, the defendant is entitled to presentence credit against only the aggregate of his or her consecutive terms; not against each of his or her consecutive terms. Thereafter, the Department of Public Safety (DPS) promulgated a written policy, effective January 1, 2005, adopting the
Tauiliili
“methodology” for computing presentence credit for consecutive sentences (Policy).
7
B.
On January 10, 2008, Petitioner filed a Motion for Clarification of Illegal Sentence or in the Alternative, to Correct Illegal Sentence (Petition). In his Petition, Petitioner argued that the retroactive application of
Tauiliili
to recalculate his minimum sentences (1) violated the
Ex Post Facto
Clause of the United States Constitution; (2) contravened this court’s decision in
State v. Ikezawa,
75 Haw. 210, 220-21, 857 P.2d 593, 598
(1993), regarding the retroactivity of judicial decisions; and (3) breached the Due Process Clause of the United States Constitution inasmuch as (a) the sentencing court and Petitioner assumed that Petitioner’s presentence credit would be applied to both of his consecutive terms, (b)
On March 18, 2009, the circuit court of the first circuit (the court) 8 filed its Findings of Fact, Conclusions of Law and Order Denying Petitioner’s January 10, 2008 Nonconforming Petition for Post-Conviction Relief denying Petitioner’s Motion. The court concluded that since Tauiliili did not change the law but merely interpreted existing law, reeom-putation of Petitioner’s minimum sentences did not violate the Ex Post Facto Clause or due process. Additionally, the court concluded that neither the plea agreement nor the transcript of Petitioner’s sentencing hearing demonstrated that Petitioner was to receive presentenee credit on both of his consecutive terms.
C.
On appeal to the ICA, Petitioner reiterated the same arguments raised before the court. The ICA affirmed the court pursuant to a Summary Disposition Order (SDO) filed on June 23, 2010. 9 See Garcia, 2010 WL 2513357, at *3.
1.
With respect to Petitioner’s
Ex Post Facto
Clause argument, the ICA acknowledged that “ ‘[rjetroaetive application of a law that imposes a greater punishment than the law in effect when the crime was committed is forbidden by the Ex Post Facto [Cjlause [ ] of the Constitution.’ ”
Id.
(quoting
Davis v. Moore,
772 A.2d 204, 215-16 (D.C.Cir.2001) (footnote omitted)). The ICA stated, however, that “ ‘[t]he United States Supreme Court has made it clear that the constitutional prohibition against
ex post facto
measures applies only to legislative enactments.’”
Id.
(quoting
State v. Jess,
117 Hawai‘i 381, 407, 184 P.3d 133, 159 (2008)). According to the ICA,
2.
The ICA did not specifically address Respondent’s arguments with respect to the retroactive application of judicial decisions under
Ikezawa
but, rather, addressed Respondent’s argument in that regard as a
As to foreseeability, the ICA noted that in accordance with HAR § 17-1204-17, Petitioner’s presentence credit was to be applied to his first seven-year minimum term and not to each minimum term.
Id.
Because “HAR § 17-1204-17 was promulgated in 1985[,]” the ICA maintained that “it was not unexpected that
The ICA also explained that the “HPA’s application of Tauiliili to [Petitioner] was procedural in nature because the application was to correct HPA’s prior misapplication of presentence credit in order to conform to the law as it existed prior to and after Tauiliili.” Id. The ICA held that, in sum, application of Tauiliili did not violate Petitioner’s due process rights under the Hawaii or United States Constitutions. Id.
3.
Finally, with respect to Petitioner’s argument that Petitioner and the sentencing court assumed that the presentenee credit would apply to both of his consecutive terms, the ICA decided that “nothing in the transcript or [Petitioner’s] plea agreement [ ] indicate[d] that the parties agreed that [Petitioner] would receive credit for the detention time for each count.” Id. at *3. On October 13, 2010, Petitioner filed his Application urging this court to review the decision of the ICA.
II.
Petitioner presents the following questions in his Application:
A. Whether the ICA erred in concluding that recalculation of [Petitioner’s] detention credit pursuant to [Tauiliili] . . . did not violate the ex post facto clause of the United States Constitution.
B. Whether the ICA erred in concluding that [Tauiliili ].... was properly applied retroactively in the recalculation of [Petitioner’s] detention credit.
C. Whether the ICA erred in concluding that recalculation of [Petitioner’s] detention credit pursuant to [Tauiliili] . . . did not violate due process.
(Emphases added.) (Some capitalization omitted.)
III.
A.
With respect to his first question regarding the
Ex Post Facto
Clause, Petitioner maintains that the Clause was violated by adoption of the Policy. He urges that the Policy “should be accorded the force and effect of law” because (1)
B.
With respect to the second question presented, Petitioner maintains that Ikezawa sets forth the controlling doctrine regarding the retroactive application of judicial decisions. According to Petitioner, Ikezawa paid “great attention to the question of whether retroactive application [would] undermine the integrity of the judicial process, cause substantial unfairness, and cause an inequitable result.” Petitioner asserts he was substantially prejudiced by the retroactive application of Tauiliili inasmuch as its application has “lengthened his minimum term by about two years and two months.” He urges that where, as here, “substantial prejudice results from the retrospective application of new law principles to a given set of facts, the inequity may be avoided by giving guiding principles prospective application only.” 11
C.
As indicated, the ICA couched its due process and retroactivity analyses, partially in terms of whether the Tauiliili decision was unexpected in the context of prior law. Thus, in connection with the third question, Petitioner argues that the ICA was mistaken. Initially, he observes that HAR § 17-1204-17 was not cited to by either party or the court, and “was not and has not been judicially noticed.” 12
Next, he contends that the holding of Tauiliili was indeed unexpected. He points out that he “s ought leave [from the court] to question the HPA administrator as to whether” it was HPA’s “prevailing practice [] to deduct presentenee credit from each consecutive term.” According to Petitioner, that motion was denied because “[Respondent] did not dispute th[e] ‘practice’ of the imposition of dual credit until that practice was changed post-Tauiliili.” He maintains, then, that the ICA’s suggestion that Tauiliili was “consistent with HPA’s long standing practice of only applying presentenee credit once” is based on a “misapprehension of the evidentiary record” and “raises a genuine question as to whether [Petitioner] received a fair review before the ICA[.]” Petitioner observes that, in fact, the ICA referred to HPA’s “prior misapplication” of the presen-tenee credit which, according to Petitioner, undermines the ICA’s own conclusion regarding “HPA’s mythical ‘longstanding practice’ of applying credit once.”
Also, Petitioner asserts that Noble, which was relied upon by the ICA in support of its conclusion that Petitioner’s due process rights were not violated, is distinguishable. According to Petitioner, in that case, the defendants were suing under a disparate treatment theory where the United States Parole Commission was interpreting the Good Time Credits Act differently from the District of Columbia Department of Corrections. He contends that in those eases, the defendants “had much weaker claims to lack of notice” because the good time credits were being applied uniformly everywhere except in the District of Columbia. Petitioner asserts that here, the due process claim is grounded in his “lack of notice and foreseeability” of the change in HPA’s “monolithic [ ] practices.”
Lastly, Petitioner declares that a “fair reading” of the plea agreement and transcript supports the conclusion that the parties
IV.
This court’s decision in Tauiliili is central to the instant ease. In that case, Tauiliili had pled guilty to three separate counts and had been sentenced by the trial court “to 10 years’ indeterminate imprisonment for Count I, 10 years’ indeterminate imprisonment for Count II, and 5 years’ indeterminate imprisonment for Count III.” Tauiliili, 96 Hawai‘i at 197, 29 P.3d at 916. The two ten-year sentences for Counts I and II were to “run concurrently and the sentence for Count III[was] to run consecutively to the sentences for Counts I and II.” Id. Tauiliili subsequently filed a motion seeking an order granting presentence credit for time served. Id. He requested that his 853 days of pre-sentence detention be credited against each of his consecutive sentences. The trial court entered an order granting Tauiliili’s motion in part and denying it in part. Id.
The trial court agreed that Tauiliili was entitled to presentence credit, but determined that “the legislative purpose of
Tauiliili appealed the order of the trial court, arguing that it “incorrectly interpreted
Tauiliili’s claim that the presentence credit should have been applied to each of his consecutive sentences, however, was rejected. This court stated that the commentary to
V.
With respect to Petitioner’s first question, article I, section 10 of the United
Therefore, the ICA was correct in its conclusion that ‘“the constitutional prohibition against
ex post facto
measures applies only to legislative enactments.’ ”
Garcia,
2010 WL 2513357, at *1 (quoting
Jess,
117 Hawai‘i at 407, 184 P.3d at 159). But, as recounted, Petitioner contends that the Policy is a “law” that implicates the
Ex Post Facto
Clause. Here, however, the Policy merely adopts and enforces the holding of
Tauiliili
which sets forth the proper interpretation of
As pointed out by Petitioner, Respondent conceded that prior to Tauiliili, it was HPA’s practice to give credits against multiple sentences. At the hearing on his Petition, Petitioner explained that, at the “pretrial conference, [ ] it seemed to be . . . the unanimous position of the parties that in fact that was the pr e-Tauiliili policy, and that when Tauiliili was issued, a new policy came into effect where the credit was given just one time on the aggregate.” Petitioner explained that, then, at a subsequent hearing on other motions, “there seemed to be questions raised as to whether the policy of the parole board pr e-Tauiliili . . . was in fact that people were given dual credit on consecutive terms” and whether “Tauiliili brought in a new policy or not[.]” Petitioner stated that for that reason, Petitioner “want[ed] to subpoena . . . the parole chairman at the time of Tauiliili or some other appropriate personnel to ask” him or her “what the policy was pr e-Tauiliili and if in fact a new policy was instituted with Tauiliili.”
Respondent conceded that “there was no factual dispute regarding the pr e-Tauiliili practice of the HPA.” According to Respondent, it had “never denied that . . . parolees were given multiple credits incorrectly prior to the issuance of the Tauiliili case.” Respondent maintained that the issue was therefore not a factual one, but whether the practice of recalculating credits “constituted change in the . . . law that would implicate the ex post facto clause.”
This court has not yet determined whether administrative rules, policies, or regulations are “laws” that implicate the
Ex Post Facto
Clause of the United States Constitution. However, in the instant case, it appears that the “law” pursuant to which Petitioner’s minimum release dates were recalculated was not the Policy but, rather,
A.
With respect to Petitioner’s third question, 14 while the previous discussion makes apparent that the Ex Post Facto Clause does not apply to judicial decision-making, retroactive application of a judicial decision may implicate due process. Rogers, 532 U.S. at 456, 121 S.Ct. 1693 (stating that limitations on the retroactive application of a judicial decision “are inherent in the notion of due process”); see also Jess, 117 Hawai‘i at 407, 184 P.3d at 159 (stating that “[tjhe Rogers Court . . . observed ‘that limitations on ex post facto judicial decisionmaking are inherent in the notion of due process’ ” (quoting Rogers, 532 U.S. at 457, 121 S.Ct. 1693)). The Supreme Court has stated that accordingly, “judicial reformation of the law Violates the principle of fair warning, and hence must not be given retroactive effect,’ ” where such reformation is “‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue[.]’ ” Jess, 117 Hawai‘i at 408, 184 P.3d at 160 (quoting Rogers, 532 U.S. at 462, 121 S.Ct. 1693 (quoting Bowie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)) (emphasis added). As indicated previously, the ICA likewise observed that “ ‘[a]n unforseeable [sic] interpretation of a statute that increases punishment, if applied retroactively, could violate due process.”’ Garcia, 2010 WL 2513357, at *1 (quoting Campbell, 563 F.Supp.2d at 26) (citing Bouie, 378 U.S. at 353-54, 84 S.Ct. 1697)).
Prior to Jess, which the ICA relied upon in support of the proposition that judicial reformation of the law could violate principles of due process, a majority of this court had held that under the intrinsic/extrinsie distinction, facts which exposed a defendant to an extended prison term sentence were not required to be submitted to and decided by the jury. See, e.g., State v. Kaua, 102 Hawai‘i 1, 72 P.3d 473 (2003) and State v. Rivera, 106 Hawai‘i 146, 102 P.3d 1044 (2004). A majority of this court reaffirmed that proposition in State v. Maugaotega, 107 Hawai‘i 399, 114 P.3d 905 (2005) (Maugaotega I).
Then, “pursuant to the United States Supreme Court’s mandate and judgment vacating” Maugaotega I, this court reconsidered Maugaotega’s appeal in light of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). See Jess 117 Hawai‘i at 394, 184 P.3d at 146 (citing State v. Maugaotega, 115 Hawai‘i 432, 168 P.3d 562 (2007) (Maugaotega II)). In Maugaotega II, this court “thus acknowledged that, in light of Cunningham, except for prior convictions, multiple convictions, and admissions, ‘any fact, however labeled, that serves as a basis for an extended term sentence must be proved beyond a reasonable doubt to the trier of fact.’ ” Id. (quoting Maugaotega II, 115 Hawai‘i at 447, 168 P.3d at 577). The Jess majority determined that in light of Cunningham, the “intrinsic/extrinsic” distinction, which had been a part of Hawai‘i case law for approximately thirty years as of the date of the Jess decision, was no longer viable in the context of charging procedure. Id. at 400, 184 P.3d at 152. Jess was a clear case of a “new rule” because it explicitly overruled prior precedent.
Here, unlike in
Jess, Tauiliili
did not “reform” the law in any way.
Tauiliili
did not overrule any prior decision of this court with regard to the application of presentence credit to two or more consecutive sentences.
Tauiliili
was the first occasion upon which this court had the opportunity to interpret
Additionally,
Tauiliili
did not increase the punishment for the crime for which Petitioner
Similarly, in
Campbell,
563 F.Supp.2d at 24, the petitioner had been sentenced to a
prison term of five to fifteen years while on parole for an earlier offense. The petitioner’s parole and “street-time” credit while on parole were revoked pursuant to
Noble. Id.
at 25 (citing
Noble,
693 A.2d at 1084). In
Noble,
the Court of Appeals, District of Columbia, held that street-time credit could be revoked upon revocation of parole because although
With respect to the petitioner’s
ex post facto
challenge, the United States District Court, District of Columbia noted that
McKee v. United States Parole Comm’n,
214 Fed.Appx. 1, 2 (D.C.Cir.2006), held that “ ‘Noble provided an authoritative statement of the meaning of
As to the petitioner’s due process argument, the district court acknowledged that “[a]n unforeseeable interpretation of a statute that increases punishment, if applied retroactively, could violate due process.” Id. at 26 (citing Bouie, 378 U.S. at 353-54, 84 S.Ct. 1697). However, the district court noted that in Davis, 772 A.2d at 217, the D.C. Court of Appeals held that although Noble ‘“contradicted expectations in the District [of Columbia] that were encouraged by authoritative pronouncements and that were reasonably held,’ . . . [Noble ] was not so unexpected or unforeseeable as to offend the Constitution[,]” inasmuch as “the Commission had an ongoing practice of withholding District of Columbia prisoner’s street-time credit upon parole revocation[.]” Id. (citing Davis, 772 A.2d at 218-19 (internal citation omitted)).
In this ease, as in
Kamana’o
and
Noble,
there was no
ex post facto
“expansion” of Petitioner’s criminal liability. At the time Petitioner committed the offenses,
Moreover, as elucidated in
Tauiliili,
the commentary to
Since the commentary to
B.
As indicated, in connection with his third question. Petitioner challenges the ICA’s determination that
Tauiliili
was not unforeseeable because
Tauiliili
“was consistent with HPA’s longstanding practice of only applying presentenee credit once to a minimum sentence expiration date.”
Garcia,
2010 WL 2513357, at *2. It is noted that the record does indicate that Respondent did in fact concede to having a practice of applying pre-sentence credits to each consecutive sentence.
See supra.
We note that in light of Respondent’s concession, the ICA erred in determining that HPA had such a “longstanding practice” of applying presentenee credit only once. However, even if HPA did have such a practice, it cannot be said that application of
Tauiliili
to Petitioner violated his due process rights. Due process does not
VII.
Although not expressly argued, Petitioner seemingly suggests that he had a due process right in the implementation of the plea agreement terms. But, as noted by Respondent on appeal to the ICA, the plea agreement specifically indicates that Petitioner’s guilty plea was made “[i]n consideration of the substantial concessions of’ (1) the reduction of a charge of Robbery in the First Degree to Robbery in the Second Degree under counts II, III, and IV; (2) Respondent’s relinquishment of an allegation that Petitioner used a handgun under counts II, III, and IV; and (3) Petitioner being subject to continuing prosecution under counts II, III, and IV for Robbery in the First Degree should the first plea offer be rejected. The only reference to presentenee credit in the plea agreement states that Petitioner was “free to argue at sentencing for credit for time served dating from the date of initial arrest on October 22,1995.” Thus, the plea agreement itself does not imply that Petitioner gave up any rights, based in part, on his understanding that presentenee credit would be applied to each of his consecutive terms.
When Petitioner was arrested for the offenses in this case in October 1995, Petitioner was on parole for a previous and unrelated conviction, the sentence for which was to expire in -2001. As a result of violating parole. Petitioner had to serve the remaining six years of that term (unexpired term). As noted, Petitioner had been sentenced to two ten year terms, the first of which was to run concurrently with Petitioner’s unexpired term. As recounted, Petitioner contends in his Application that the sentencing transcript indicates that he and the sentencing court intended to apply the presentenee credit to both of his consecutive terms. The only language in the transcript to which he points in support of this argument is his statement, “So when I finish doing the unexpired prison term because these all these terms are going to be concurrent with my expired, that’s six years off each term.” (Emphasis in original.) He also points out that the sentencing court stated that his total sentence would be sixteen years.
However, the sentencing transcript reveals that the foregoing remarks were based on Petitioner’s misconception that his unexpired term would run concurrently with both of his ten-year terms as opposed to only his first ten-year term. The foregoing statement was made in the following context:
[Court]: This criminal number is supposed to run with any other sentence that you’re currently serving.
[Petitioner]: Yes. But not consecutively-
[Court]: No. Just [c]ount 1 will be consecutive to the four [c]ounts 2 through 5.
[Petitioner]: Okay. And my unexpired term will be concurrent with all five 10-year terms; correct ?
[Court]: Yes. And I think the effect is
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[Petitioner]: That those tens, even though they’re running consecutive to each other. And generally one would not start until the first one finished. But as this plea agreement is worded, they both are going to be concurrent. So for the six years from 1995, which was my unexpired [] term, these terms are all going to non with that.
So in 2001, when I finished [sic] [my unexpired term], there’s only U and ⅛ left of [each] 10-year[] term, at which time they will revert consecutively to each other because there’s no more unexpired prison term to non concurrently with.
At the hearing on his Petition in this case, the court asked Petitioner to identify language in the sentencing hearing that would indicate presentence credit would be applied to each of his consecutive terms. Petitioner responded that he had stated that his entire sentence “came out to about 14 years” and the court responded that it was about “16 years.”
But, at the Petition hearing, the court said that Petitioner had been arrested and placed into custody for the offenses in this ease on October 22, 1995, and was sentenced on Mai’ch 3, 1998. Therefore, the presentenee credit would have been “[a]bout two years and four months.” 15 The court explained that if Petitioner believed that credit would be applied twice, Petitioner would have calculated a total presentence credit of four years and eight months. Petitioner was asked to point to remarks from the sentencing hearing suggesting that he would receive a total of four years and eight months of presen-tence credit as opposed to two years and four months. Petitioner then asserted that the record contained a reference to a five-year period stating, “I said 14, she said 16. Right in the middle is 15.” 16 The court then asked, “Isn’t it true that [in coming up with fourteen years,] what you [were] doing [was] . . . calculating it based on your prior conviction[,]” i.e. Petitioner’s unexpired term. Petitioner responded, “In part[,]” but maintained that it also included his calculation of presentence credit, which he believed would be applied to each consecutive ten-year term.
Although Petitioner contended at the Petition healing, to the ICA, and now, to this court, that the fourteen-year and sixteen-year references support an intent to apply presentence credit to both of his consecutive terms, it is evident from the foregoing that the fourteen-year reference resulted from Petitioner’s belief that he would be serving his unexpired term from 1995 to 2001 for a total of six years and that both consecutive ten-year terms would run concurrently with his six year unexpired term. Therefore, he argued that after serving his six years on his unexpired term, four years would be left on each consecutive term which would then ran consecutively for a total sentence of fourteen years (six years on the unexpired and two consecutive four-year terms).
It is unclear how the court arrived at sixteen years. Respondent urges that it is likely that the mistaken sixteen-year remark resulted from Petitioner’s reference to “ ‘six years’ [from] his then-unexpired prison term and adding it to the second of his ‘ten-year term’ for a total of sixteen years.” This is supported by the fact that the court’s statement responded to Petitioner’s argument that both of his consecutive ten-year terms were to ran concurrently with his unexpired term; not any argument relating to presen-tence credit. The sentencing court in fact stated that it had not “done the math.”
It may be further observed that in response to Petitioner’s argument regarding
[Court]: What I’m telling you right now is if you-if you don’t see it that way, you have a couple of choices. One of those choices is to forget the plea agreement, withdraw your plea, go to trial on all the original charges.
[Petitioner]: That would never come into my mind. What I would just like is, you know, have these obligations under the plea agreement. That’s the issue.
[Court]: Okay. And if there’s a dispute about that, you need to know that the State is looking for SO years. But from, what you’ve told me, you’re looking for 1⅛.
[Petitioner]: No. But the thing is why did the State bind themselves [sic] and the [c]ourt bind themselves [sic] to this agreement as specifically written?
[Court]: I’m saying I’m looking at the whole agreement. I’m not looking at— picking one sentence out.
[Petitioner]: Okay. Well, I’m looking at the whole agreement myself. And my interpretation, I believe, is correct and is backed [b]y related statutes. So if I don’t see it any other way I’ll have to — because I will not withdraw my plea ever — I would have to appeal....
(Emphases added.) As indicated, the entire colloquy involved a disagreement regarding how Petitioner’s current sentence would ran with his unexpired term. Petitioner agreed with the court’s interpretation in declining to withdraw his plea notwithstanding any alleged discrepancy. The foregoing also confirms that the court did not make any promises regarding the use of presentence credits, and Petitioner was specifically warned that the sentencing court could not make any representations regarding his release date or whether he would be eligible for parole. In view of the foregoing, Petitioner’s argument that recalculation of his sentence violated his due process rights must be rejected. 17
VIII.
As recounted, separate and apart from Petitioner’s questions regarding the Ex Post Facto and Due Process Clauses of the United States Constitution, Petitioner’s second question involves whether Tauiliili should have been applied retroactively to Petitioner, or whether it should have applied prospectively only.
A.
This court has stated that “judicial decisions are assumed to apply retroaetively[.]”
Ikezawa,
75 Haw. at 220, 857 P.2d at 597. However, retroactive application “is not automatie[,]”
id.
at 220, 857 P.2d at 598, and where “a judicial decision announces a ‘new rule,’ ” “this court may, in its discretion, determine that the interests of fairness preclude retroactive application of the new rule[,]”
State v. Ketchum,
97 Hawai‘i 107, 123 n. 26, 34 P.3d 1006, 1022 n. 26 (2001) (quoting
State v. Peralto,
95 Hawai‘i 1, 6, 18 P.3d 203, 208 (2001));
see State v. Garcia,
96 Hawai‘i 200, 211, 29 P.3d 919, 930 (2001) (“When questions of state law are at issue, state courts generally have the authority to determine the rétroactivity of their own decisions.”) (Internal quotation marks and citations omitted.) In other words, retroactivity is assumed unless a “new rule” is announced.
See Jess,
117 Hawai‘i at 400, 184 P.3d at 152 (“The question of prospective application arises when this court announces a new
As discussed previously, in Jess, the majority ruled that Jess announced a new rule because, under previous precedent, “the intrinsic/extrinsic distinction . . . did not require, and indeed counseled against, the inclusion of extrinsic facts in the charging instrument” and, therefore, Jess “represented] the first instance in which [a majority of this court] questioned the ongoing viability of the intrinsie/extrinsie distinction in the context of charging procedure.” Id. at 400-01, 184 P.3d at 152-53. As stated, the rule in Jess was new because it marked a departure from this court’s prior precedent. By contrast, in Ketchum, this court held that the rule for which the petitioner sought nonretroactivity was not new, inasmuch as it “merely clarified [an] existing proposition.” Ketchum, 97 Hawai‘i at 123 n. 26, 34 P.3d at 1022 n. 26. “As such, there [wa]s no ‘new [] rule’ to which to give retroactive application in the first instance.” Id.
Applying the foregoing, Tauiliili did not “overrule[ ] a precedent upon which the contest would otherwise be decided differently[.]” Jess, 117 Hawai‘i at 400, 184 P.3d at 152. Unlike Jess, Tauiliili was not a departure from precedent but, rather, confirmed the law as it existed prior to that decision. See Rivers, 511 U.S. at 312-13, 114 S.Ct. 1510 (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”). Accordingly, the proposition in Tauiliili applies retroactively.
B.
Assuming arguendo, Tauiliili did announce a “new rule,” insofar as it was inconsistent with HPA’s practice of applying presentence credits to each consecutive sen tence, Ikezawa does not require prospective application only, as Petitioner urges. In Ikezawa, on March 23, 1990, the defendant had been arrested and charged with third degree assault. 75 Haw. at 213, 857 P.2d at 595. This charge was subsequently dismissed without prejudice. Id. Over a year later, the defendant was charged with second degree assault. Id. The defendant filed a motion to dismiss the charge pursuant to Hawaii Rules of Penal Procedure Rule (HRPP) 48(b)(1), 18 which was denied. The defendant was convicted of the lesser included offense of third degree assault. Id.
On appeal, the defendant argued that the circuit court had improperly denied his motion to dismiss the charge because “the six-month period within which trial must commence under HRPP [Rule] 48(b)(1) had lapsed.” Id. The defendant contended that pursuant to State v. Holt, 67 Haw. 246, 684 P.2d 971 (1984), and State v. Stone, 65 Haw. 308, 651 P.2d 485 (1982), “where the original charge differs from the subsequent charge, the time period between the dismissal of the original charge and the filing of the new charge must be included in the six-month calculation.” Ikezawa, 75 Haw. at 213, 857 P.2d at 595 (emphasis added).
Ikezawa observed that in State v. Santiago, 53 Haw. 254, 268, 492 P.2d 657, 665 (1971), this court noted the “curious lacework” of the Supreme Court regarding retro-activity and recognized that:
In making those determinations, the United States Supreme [Court] . . . has given consideration to three factors: (a) the purpose to be served by the newly announced rale, (b) the extent of reliance by law enforcement authorities on the old standards, and (e) the effect on the administration of justice of a retroactive application of the new standards.
75 Haw. at 220, 857 P.2d at 598 (brackets omitted). The Ikezawa court added that in another case, Russell v. Blackwell, 53 Haw. 274, 277, 492 P.2d 953, 956 (1972), this court stated that “‘[fjactors to be considered include: Prior history of the rule in question, its purpose and effect, and whether retroactive operation will further or retard its operation; interests in the administration of justice and the integrity of the judicial process.’ ” 75 Haw. at 220, 857 P.2d at 598. According to Ilcezawa, “implicit in the factors described in Santiago and Russell is the concept of fairness.” Id.; see also Garcia, 96 Hawai‘i at 211, 29 P.3d at 930 (stating that the Ikezawa placed emphasis on “‘the concept of fairness’” in retroactively applying judicial decisions). Ikezawa thus stated that “where substantial prejudice results from the retrospective application of new legal principles to a given set of facts, the inequity may be avoided by giving the guiding principles prospective application only.” Ikezawa, 75 Haw. at 220-21, 857 P.2d at 598.
Applying the three factors from Santiago, this court determined that with regard to the first factor, “[t]he purpose of HRPP Rule 48 is to insure a defendant’s right to a speedy trial by requiring that the trial start within six months of the charge or arrest.” Id. at 222, 857 P.2d at 598. The Ikezawa court concluded that the purpose of Balauro was to set forth the correct interpretation of HRPP Rule 48. Id. at 222, 857 P.2d at 598-99 (“A retroactive application of Balauro furthers the purpose of the HRPP [Rule] 48(e) . . . by correctly interpreting the rule and tolling the six-month limitation where the reprosecution occurs after the dismissal of an earlier charge.”).
As to the second factor, the Ikezawa court noted that the defendant had relied on this court’s decision in Stone and moreover, that his “reliance was substantial.” Id. at 222, 857 P.2d at 599. Ikezawa reasoned that “had [the defendant] known that the Balauro rule would be applied, he could have filed a successful HRPP 48 motion at a later time.” Id.
Finally, with respect to the administration of justice, this court determined that, “given the timing of [the defendant’s] motion,
Stone
required a dismissal of the charge while the retroactive application of
Balauro
pre-elude[d] dismissal.”
Id.
It was noted that the defendant “could have received a dismissal under the
Balauro
rule if he had delayed the filing of his motion.”
Id. Ikeza-wa
determined that “[r]etroaetive application of
Balauro
would, therefore, produce a substantially inequitable result.”
Id. Ikezawa
recognized that on the other hand, “applying
In the instant ease, with respect to the first
Santiago
factor, the purpose of
Tauiliili
was to set forth the correct interpretation of
With respect to the second factor, this court has noted that
Ikezawa
specifically “considered substantial prejudice in the context of a defendant’s reliance on overruled precedent.”
Garcia,
96 Hawai‘i at 212, 29 P.3d at 931. Here, there was no prior decision which interpreted
It may be further observed that
Finally, as to the third factor, the interests in the administration of justice and the integrity of the judicial process are best served by consistent application of sentences for all defendants convicted for the same offense and by having the sentences of all inmates properly calculated. Also, HPA has seemingly undertaken the task of recalculating the sentences of inmates, as evident from the Policy. Therefore, retroactive application of Tauiliili would not place a heavy burden on the courts or on the administration of justice. In sum, any alleged inequity resulting from the recalculation of Petitioner’s sentence does not outweigh the other Santiago factors.
IX.
The ICA did not gravely err in affirming the court’s Order Denying Petitioner’s January 10, 2008 Nonconforming Petition for Post-Conviction Relief, and its July 16, 2010 judgment is affirmed on the grounds set forth herein.
Notes
. In that case, this court affirmed the decision of the Intermediate Court of Appeals (ICA) in Killion v. State, No. 29077, 2009 WL 484411, at *1 (App. Feb. 24, 2009) (SDO). Respondent/Respondent-Appellee State of Hawai‘i (Respondent) cited to Killion in its opening brief to the ICA.
. HAR 17-1204-17 was repealed on April 15, 2000.
. As discussed infra, HAR § 17-1204-17 indicated that presentence credits shall be applied only once against the aggregate minimum terms, where consecutive terms have been imposed. However, in his Application, Petitioner notes that at the hearing on his petition, he testified that based on his own research as a ” ‘jailhouse lawyer,’ ” prior to Tauiliili, the HPA had a practice of applying presentence credits against each minimum term, not against the aggregate.
.The plea agreement provided in relevant part as follows:
1. [Petitioner] to plead guilty to a reduced charge of Robbery 2d Degree under counts II, III, and IV,
2. [Petitioner] to plead guilty as charged to Robbery 2d Degree under Counts I and V.
3. In consideration of the substantial concessions of
a) the reduction in charge from Robbery 1st Degree to Robbery 2d Degree under counts II, III, and IV
b) [Respondent’s] relinquishing of the allegation of [Petitioner’s] use of a handgun under counts II, III, and IV, and
c) [Petitioner’s] being subject to continuing prosecution under counts II, III, and IV for Robbery 1st should the instant plea offer not be accepted,
[Petitioner] agrees to open ten year term[s] on all counts, with a minimum term of ten years under count I. Said minimum term shall not be subject to early release, furlough, or parole.
4. Open term of ten years under count I to run consecutively with [sic] open terms of ten years under counts II, III, TV, and V.
5. Open terms of ten years under counts II, III, IV, and V to run concurrently with each other.
6. [Petitioner] agrees to a mandatory minimum term of three years, four months as a repeat offender under count I.
7. [Respondent] and [the] court agree to not seek any enhanced or extended sentencing, or consecutive sentencing, except as agreed to herein.
8. Parties stipulate that sentence under the subject criminal number be concurrent with any sentence [Petitioner] is cunently serving.
9. [Petitioner is] free to argue at sentencing for credit for time seived dating from the date of his initial arrest on October 22,1995.
[RA at 26] (Emphases added.)
. The Honorable Victoria S. Marks presided.
.
(1) When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant’s arrest for the crime for which sentence is imposed, such period of detention following the defendant’s airest shall be deducted from the minimum and maximum terms of such sentence. The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence, showing the length of such detention of the defendant prior to sentence in any State or local correctional or other institution, and the certificate shall be annexed to the official records of the defendant’s commitment.
Tauiliili, 96 Hawai‘i at 198, 29 P.3d at 917 (emphasis added).
.The Policy promulgated by DPS states that the Policy (1) is “New”; (2) is to be effective as of January 1, 2005; and (3) regards “Sentence Computation^]” Under a section entitled “Method of Computation,” the Policy states in relevant part that “[p]ursuant to the Tauiliili case, any multiple sentences imposed at the same time will be computed with presentence credit applied only to the aggregate sentence, and not to each of the remaining sentences.” The Policy further states, “This policy applies to all [DPS] personnel. All prior policies, procedures, and practices are hereby superceded to the extent they are inconsistent with this [P]olicy.” (Emphases added.)
. The Honorable Virginia L. Crandall presided.
. The SDO was filed by Chief Judge Craig H. Nakamura and Associate Judges Daniel R. Foley and Katherine G. Leonard.
.
The [HPA] may establish rules, with the approval of the governor and the director of public safety not inconsistent with this part, under which any prisoner may be paroled but shall remain, while on parole, in the legal custody and under the control of the paroling authority, and be subject, at any time until the expiration of the term for which the prisoner was sentenced, to be taken back within the enclosure of the prison. The rules shall have the force and effect of law.
. Respondent did not specifically address the foregoing arguments in its Answering Brief to the ICA.
. Contrary to Petitioner‘s assertion, HAR § 17-1204-17 was raised by Respondent in its Answering Brief to the ICA; hence, this assertion need not be addressed further.
. One of the trial court’s conclusions stated:
For example. Defendant’s MAXIMUM TERM should be calculated as:
Count I and II (concurrent) 10 year maximum
Count III (consecutive) + 5 year maximum
SUM OF SENTENCE 15 year maximum
Credit for time served - 853 days
MAXIMUM TERM 12 Yrs 8 Mos
Defendant‘s MANDATORY MINIMUM TERM should be calculated as:
Count I 5 year maximum
Count III (consecutive) + 3 year maximum
SUM OF SENTENCE 8 year maximum
Credit for time served - 853 days
MANDATORY MINIMUM TERM 5 Yrs 8 Mos
Tauiliili, 96 Hawai‘i at 197, 29 P.3d at 916 (formatting altered).
. Petitioner’s second question is discussed in Part VII.
. As noted, at the time of sentencing, Petitioner had been incarcerated for 863 days which would amount to just under two years and four months.
. If presentence credit were applied once. Petitioner‘s total sentence would be seventeen years and eight months. If presentence credit were applied twice. Petitioner‘s total sentence would be about fifteen years and four months. Notably, neither the court’s sixteen-year reference nor Petitioner’s fourteen-year reference reflect the application of presentence credit to both consecutive terms. Apparently unable to find any specific language in the sentencing transcript suggesting that he or the court intended for his presentence credit to apply to each consecutive ten-year term, Petitioner attempts to use the average of the two periods stated to suggest that there was a fifteen-year reference. Inasmuch as there was no mention of a credit of four years and five months, as discussed infra, those two statements had nothing to do with presen-tence credit.
. Because this court has adopted a similar due process analysis with respect to the retroactive application of judicial decisions, see Jess, 117 Hawai‘i at 407-08, 184 P.3d at 159-60, Petitioner‘s due process claim fails under both the United States and Hawaii Constitutions.
. HRPP Rule 48(b)(1) in effect at the time provided:
Except in the case of traffic offenses, the court shall, on motion of defendant, dismiss the charge, with or without prejudice in its discretion, if the trial is not commenced within 6 months from:
(1) the date of arrest or of filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made[.]
Ikezawa, 75 Haw. at 211 n. 1, 857 P.2d at 594 n. 1 (formatting altered).