Robert Flubacher pled guilty to various offenses in multiple cases, and was sentenced to extended term sentences, which became final in 2003. In 2014, Flubacher filed a petition for post-conviction relief pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40, arguing that his sentence was illegal because a judge, not a jury, found a relevant fact used to enhance his sentence in violation of Apprendi v. New Jersey , 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). The Circuit Court of the First Circuit (circuit court) 1 denied the petition, and the Intermediate Court of Appeals (ICA) affirmed. On certiorari, Flubacher argues that his extended term sentences were imposed in an illegal manner, and requests that this court vacate and remand for resentencing.

This appeal requires us to revisit our prior decisions which addressed whether Hawaii's extended term sentencing scheme was invalid under Apprendi and subsequent Supreme Court cases including Blakely v. Washington , 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), United States v. Booker , 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and Cunningham v. California , 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007). This court initially held that certain features of Hawai'i's scheme (specifically, that the facts determined by the judge were "extrinsic" to the charged offense) meant that Hawaii's statute was not invalidated by the rule announced in Apprendi . State v. Kaua , 102 Hawai'i 1 , 72 P.3d 473 (2003).

Our initial application of Apprendi in Kaua was rejected by both the United States District Court for the District of Hawai'i and the Court of Appeals for the Ninth Circuit. See Kaua v. Frank , 436 F.3d 1057 , 1062 (9th Cir. 2006) ; Kaua v. Frank, 350 F.Supp.2d 848 , 849-50, 855-56 (D. Haw. 2004). Then, commencing after the decision in Blakely , our own decisions reflected disagreement as to whether our sentencing scheme was unconstitutional. See, e.g., State v. Rivera , 106 Hawai'i 146 , 102 P.3d 1044 (2004) ; State v. Gomes , 107 Hawai'i 308 , 113 P.3d 184 (2005) ; State v. Maugaotega , 107 Hawai'i 399 , 114 P.3d 905 (2005) ( Maugaotega I ). Nevertheless, it was not until after the decision in Cunningham that a majority of the court determined that our scheme was invalid. State v. Maugaotega , 115 Hawai'i 432 , 168 P.3d 562 (2007) ( Maugaotega II ).

It is against this backdrop that we consider Flubacher's appeal, and conclude that our sentencing scheme was invalid based on the holding in Apprendi . As set forth below, Apprendi plainly stated that a sentencing scheme was invalid when it allowed a judge, rather than a jury, to determine facts that resulted in extended sentences. In concluding that Apprendi invalidated our sentencing scheme, we note that the State has now conceded that the scheme was unlawful based on Apprendi , and that accordingly, Flubacher is entitled to relief. While that concession is not binding on us, we conclude, for the reasons set forth below, that it is well founded.

Thus, we conclude that Flubacher's extended term sentences were imposed in an illegal manner. Accordingly, we vacate the ICA's Judgment on Appeal, and remand this case to circuit court for further proceedings consistent with this opinion.

I. Background

Flubacher was charged with: Unauthorized Control of Propelled Vehicle (Count I), Driving Without License (Count II), and Theft in the Fourth Degree (Count III) in Cr. No. 01-1-2788; Robbery in the First Degree (Count I), Assault in the First Degree (Count II), Assault in the First Degree (Count III), Assault in the Second Degree (Count IV), and Unauthorized Control of Propelled Vehicle (Count V) in Cr. No. 01-1-2789; and Robbery in the First Degree in Cr. Nos. 02-1-0089, 02-1-0090, and 02-1-0125. Flubacher pled guilty to all counts in each case.

The State filed a motion for extended term of imprisonment pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661 2 and 706-662(4)(a), 3 as follows: (1) in Cr. No. 01-1-2788, from a five year term of imprisonment to ten years for Count I; (2) in Cr. No. 01-1-2789, from a twenty year term of imprisonment to life with the possibility of parole for Count I, from ten year terms of imprisonment to twenty years for Counts II and III, and from five year terms of imprisonment to ten years for Counts IV and V; and (3) in Cr. Nos. 02-1-0089, 02-1-0090, and 02-1-0125, from twenty year terms of imprisonment to life with the possibility of parole.

The circuit court 4 granted the State's motion, and sentenced Flubacher to pay restitution, and to serve the following terms of imprisonment concurrently, with credit for time served: (1) in Cr. No. 01-1-2788, as to Count I, ten years' incarceration with a mandatory minimum of one year and eight months; as to Counts II and III, thirty days' incarceration; (2) in Cr. No. 01-1-2789, as to Count I, life incarceration with the possibility of parole, with a mandatory minimum of six years and eight months; as to Counts IV and V, ten years' incarceration with a mandatory minimum of one year and eight months; as to Counts II and III, twenty years' incarceration with a mandatory minimum of three years and four months; (3) in Cr. Nos. 02-1-0089, 02-1-0090, and 02-1-0125, life incarceration with the possibility of parole with a mandatory minimum of six years and eight months.

Flubacher did not appeal any of his convictions or sentences, and they became final on October 13, 2003.

In 2005, Flubacher filed an HRPP Rule 40 5 petition for post-conviction relief, alleging ineffective assistance of counsel, and arguing that his sentence was illegal because the court cited criteria not in the extended term statute, which the circuit court denied.

In 2014, Flubacher filed another petition for post-conviction relief (Petition), alleging that his sentence was illegal under Apprendi because the judge, not a jury, found that his extended term sentences were necessary for the protection of the public. The State countered that Flubacher's arguments were waived because he did not raise them on direct appeal, and that Apprendi and Cunningham may not be retroactively applied.

Flubacher amended his Petition, alleging three additional grounds for relief, including that the sentencing judge: (1) considered "false facts," i.e., that Flubacher had hit one of his victims in the face with a hammer; (2) demonstrated bias against Flubacher because of Flubacher's prior history with the court; and (3) took judicial notice of his presentence report and other documents in determining his sentence.

The circuit court denied Flubacher's Petition, stating in pertinent part in its Conclusions of Law:

1. HRPP Rule 40(a)(3) provides as follows:

Inapplicability. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

2. Flubacher's claim that his sentence was in violation of Apprendi v. New Jersey , 530 U.S. 466 [ 120 S.Ct. 2348 , 147 L.Ed.2d 435 ] ... (2000), is a claim of illegal sentence which, although arguably raised in his prior Rule 40 petition, was not ruled upon.

3. With respect to the illegal sentence claim, the [ICA] has determined that a defendant sentenced to an extended term that became final after Apprendi but prior to the United States Supreme Court rulings in Blakely v. Washington , 542 U.S. 296 [ 124 S.Ct. 2531 , 159 L.Ed.2d 403 ] ... (2004), and United States v. Booker , 543 U.S. 220 [ 125 S.Ct. 738 , 160 L.Ed.2d 621 ] ... (2005), is not entitled to relief on collateral attack. Loher v. State , 1 [1]8 Haw[ai'i] 522, 538 [ 193 P.3d 438 ] (Haw.[ ]App. 2008), cert. dismissed (August 5, 2009).

4. Flubacher's sentence became final on October 13, 2003-that is, after Apprendi and prior to both Blakely and Booker . Therefore, pursuant to Loher , Flubacher's sentence was not illegal under Apprendi and he is not entitled to retroactive application of the post- Apprendi line of cases. 6

5. Flubacher's remaining claims were waived as he could have but did not raise them on direct appeal or in S.P.P. No. 05-1-0081 and has failed to demonstrate the existence of extraordinary circumstances to justify his failure to raise them as required by HRPP Rule 40(a)(3).

6. Assuming arguendo that the claims relating to the factors considered by the sentencing court in determining Flubacher's sentence were not waived, they are wholly without merit, patently frivolous, and without a trace of support in the record.

Flubacher appealed to the ICA, reiterating the claims in his Petition. Flubacher additionally argued that Loher was not the controlling authority in his case because he was not requesting retroactive application of Blakely or Booker , and that he was only requesting application of Apprendi , Cunningham , and Ring v. Arizona , 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002).

The State responded that Flubacher's sentences were not illegal under Apprendi and the post- Apprendi line of cases because the "legal landscape" only became clear after Apprendi , Blakely , and Booker , "taken together," established that a "sentencing scheme in which the maximum possible sentence is set based on facts found by a judge is not consistent with the Sixth Amendment." The State additionally contended that Flubacher's remaining claims were waived, and that he had failed to demonstrate the existence of extraordinary circumstances to justify his failure to raise them.

In a summary disposition order, the ICA determined that Flubacher's case was similar to Loher , where the defendant's conviction was also finalized in 2003, and thus, Blakely and Booker did not apply retroactively on collateral review, and it did not need to decide whether Cunningham applied. With respect to Flubacher's contention that the circuit court erroneously considered that he hit one of his victims with a hammer, the ICA determined that the argument was waived, and that even if the argument was not waived, there was evidence in the record that supported the circuit court's conclusion.

Accordingly, the ICA affirmed the circuit court's Findings of Fact, Conclusions of Law, and Order Denying Flubacher's Petition. The ICA filed its Judgment on Appeal on October 13, 2016.

II. Standard of Review

With respect to the denial of a HRPP Rule 40 petition without an evidentiary hearing, HRPP Rule 40(f) provides, in relevant part:

(f) Hearings. If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.

As a general rule, a trial court should hold an evidentiary hearing on a HRPP Rule 40 petition for post-conviction relief if the petition states a colorable claim for relief. Dan v. State , 76 Hawai'i 423 , 427, 879 P.2d 528 , 532 (1994). To establish a colorable claim, a petitioner must allege facts that, if taken as true, would change the verdict. Id.

This court has stated that:

Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court.

Barnett v. State , 91 Hawai'i 20 , 26, 979 P.2d 1046 , 1052 (1999) (emphasis omitted, quoting State v. Allen , 7 Haw. App. 89 , 92-93, 744 P.2d 789 , 792-93 (1987) ).

"[T]he appellate court's determination of 'whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court' is a question of law, [and thus] the trial court's decision is reviewed de novo." Id. (brackets and ellipsis omitted; emphasis in original) (citing Dan , 76 Hawai'i at 427 , 879 P.2d at 532 ).

III. Discussion

In his application for writ of certiorari, Flubacher presents the following issues:

A. Appellant[']s extended sentences are illegal because they violate the United States Supreme Court cases " Apprendi v. New Jersey" and " Ring v. Arizona" and the Hawai'i ICA's " Loher v. State" case decision is not controlling in Appellant['s] case and does not foreclose Appellant[']s claim[.]

B. Appellant[']s claim that the sentencing judge erroneously found that Appellant 'Bashed' a woman with a hammer and then relied on that erroneous finding in extending Appellant[']s sentences was not waived under Haw. R. Penal P. 40(2)(3) - 1 [.]

In supplemental briefing requested by this court, the State changed its prior position regarding the first issue, and conceded that Flubacher's sentence was illegal. Specifically, the State now concedes that "any extended term sentence imposed after June 26, 2000, in which the court, not a jury, found the fact of 'necessary for protection of the public' is in violation of Apprendi ."

As set forth below, the State's concession is well-founded, and accordingly, we remand for resentencing. 7 See State v. Hoang , 93 Hawai'i 333 , 336, 3 P.3d 499 , 502 (2000).

At issue in Apprendi was a New Jersey "hate crime" statute, which provided for the imposition of an enhanced sentence based upon a finding, by the sentencing judge by a preponderance of the evidence, that the defendant had committed an offense "with a racially biased purpose." 530 U.S. at 468-70 , 120 S.Ct. 2348 . Apprendi fired several shots into the home of an African-American family who had recently moved into a previously all-white neighborhood. Id. at 469 , 120 S.Ct. 2348 . Apprendi subsequently entered into a plea agreement, under which he pleaded guilty to two counts of the second-degree offense of possessing a firearm with an unlawful purpose and one count of the third-degree offense of unlawfully possessing an antipersonnel bomb, but reserved the right to challenge any hate crime sentencing enhancement as violating the Constitution. Id. at 469-70 , 120 S.Ct. 2348 . After the plea was accepted by the court, the prosecutor filed a motion for an extended term sentence. Id. at 470 , 120 S.Ct. 2348 . The court conducted an evidentiary hearing on Apprendi's purpose for the shooting, and held that the hate crime enhancement applied, finding by a preponderance of the evidence that "the crime was motivated by racial bias," and Apprendi's actions were taken "with a purpose to intimidate" as provided by the hate crime statute. Id. at 470-71 , 120 S.Ct. 2348 . Apprendi appealed, and a divided New Jersey Supreme Court ultimately upheld his sentence, rejecting his challenge to the constitutionality of the enhanced sentencing procedure. Id. at 471-72 , 120 S.Ct. 2348 .

The United States Supreme Court granted certiorari, and reversed.

Id. at 474 , 120 S.Ct. 2348

. The Court stated that the constitutional protections at stake were of "surpassing importance," including:

the proscription of any deprivation of liberty without "due process of law," Amdt. 14, and the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury," Amdt. 6. Taken together, these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt."

Id. at 476-77 , 120 S.Ct. 2348 (emphasis added).

The Court discussed its past jurisprudence, noting that in McMillan v. Pennsylvania , 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), it first coined the term "sentencing factor" to "refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge." Id. at 485, 120 S.Ct. 2348 . The Court in McMillan held that a Pennsylvania sentencing scheme was valid because it operated "solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without [a] special finding," while also noting that "a state scheme that keeps from the jury facts that expose defendants to greater or additional punishment, may raise serious constitutional concern." Id. at 486 , 120 S.Ct. 2348 (internal quotations, citations, and brackets omitted).

The Apprendi Court stated that the relevant inquiry should not be one of form, but instead of effect: "does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494 , 120 S.Ct. 2348 . Thus, the Court rejected the "constitutionally novel and elusive distinction between 'elements' and 'sentencing factors' " 8 Id. (citation omitted). The Court reasoned that the effect of New Jersey's sentencing enhancement "unquestionably ... turn[ed] a second-degree offense into a first degree offense," and that the potential doubling of Apprendi's sentence from ten years to twenty years was "unquestionably of constitutional significance" both in terms of years of absolute imprisonment and because of the "more severe stigma attached." Id. at 494-95 , 120 S.Ct. 2348 . Therefore, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 , 120 S.Ct. 2348 . In so holding, the Court also endorsed the following rule: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." Id. (citations omitted).

Following Apprendi , this court repeatedly considered whether Hawaii's extended term sentencing scheme comported with Apprendi . Until 2007, we concluded that it did so, on the ground that Hawaii's scheme only required the judge to determine "extrinsic" facts, rather than facts that were "intrinsic" to the offense. See Kaua , 102 Hawai'i 1 , 72 P.3d 473 ; Rivera , 106 Hawai'i 146 , 102 P.3d 1044 ; Maugaotega I , 107 Hawai'i 399 , 114 P.3d 905 ; State v. White , 110 Hawai'i 79 , 129 P.3d 1107 (2006). It was not until Maugaotega II , that this court acknowledged that the United States Supreme Court, in Cunningham , rejected the validity of our intrinsic/extrinsic distinction, which formed the basis of these decisions. 115 Hawai'i at 442-47 , 168 P.3d 572 -77.

In State v. Kaua , the defendant was indicted in connection with a 1999 hostage standoff, and while the jury acquitted him of attempted murder in the first degree, it found him guilty of several other offenses. 102 Hawai'i at 2-3 , 72 P.3d at 474-75 . The State moved for an extended term sentence pursuant to HRS § 706-662(4)(a). Id. at 3-4 , 72 P.3d at 475-76 . At the evidentiary hearing, the circuit court followed the two-step process required at that time, determining first that Kaua was a multiple offender subject to an extended term sentence, i.e., Kaua was being sentenced for two or more felonies at that time, and had already been under sentence of imprisonment for a felony; and second, that the extended term sentence was necessary for the protection of the public. Id. at 4-7 , 72 P.3d at 476-79 .

In determining that the extended term sentence was necessary for the protection of the public, the circuit court cited Kaua's history of substance abuse, his substance abuse shortly before the hostage incident, his history of assaultive behavior, his inability to control his behavior while under the influence or under stress, his access to firearms and lack of experience with the firearm used to perpetrate the standoff, and the strong possibility that he could have injured minors and innocent bystanders during the incident because of his inexperience. Id. at 4-6 , 72 P.3d at 476-478 . Accordingly, the circuit court granted the State's motion, and sentenced Kaua to several extended term sentences. Id.

Kaua appealed, and this court affirmed Kaua's judgment of conviction and sentence. 9 Id. Kaua subsequently filed a motion for correction of illegal sentence under HRPP Rule 35, 10 arguing that the two-step process for determining a defendant's status as a multiple offender should be determined by the jury in a separate sentencing hearing, according to Apprendi . Id. at 6 , 72 P.3d at 478 . The circuit court denied Kaua's motion, finding that his extended term sentence was proper, and that the "facts of conviction which exposed Kaua to an extended term of imprisonment were not in the nature of 'elements' of the offenses charged or of a separate legal offense." Id. at 6-7 , 72 P.3d at 478-79 .

This court upheld the process followed by the sentencing court, reasoning:

Specifically, the facts at issue in rendering an extended term sentencing determination under HRS §§ 706-662(1), (3), and (4) ^[ 11 ^] implicate considerations completely "extrinsic"

to the elements of the offense with which the defendant was charged and of which he was convicted; accordingly, they should be found by the sentencing judge.... The facts at issue for purposes of HRS §§ 706-662(5) and (6), however, are, by their very nature, "intrinsic" to the offense with which the defendant was charged and of which he has been convicted; accordingly, they must be found beyond a reasonable doubt by the trier of fact in order to afford the defendant his constitutional rights to procedural due process and a trial by jury.

Id. at 12-13 , 72 P.3d at 484-85 (citations omitted). 12

Respectfully, our analysis in Kaua erroneously concluded that despite the Court's clear holding in Apprendi , this court's intrinsic/extrinsic factor analysis still remained valid. 13

102 Hawai'i at 12-13 , 72 P.3d at 484-85 . Specifically, we characterized Apprendi as stating the following:

[A] finding that the defendant committed the charged offense with a biased purpose, of necessity, required an assessment of the 'elemental' facts upon which the indictment was based. That being the case, the Apprendi Court held that findings that implicated 'elemental' facts requisite to imposing an enhanced sentence must be charged in the indictment, submitted to the jury, and proved by the prosecution beyond a reasonable doubt.

Id. at 12 , 72 P.3d at 484 (citations omitted).

Accordingly, we asserted that the "facts at issue in rendering an extended term sentencing determination under HRS § 706-662(1), (3), and (4) implicate considerations completely 'extrinsic' to the elements of the offense with which the defendant was charged.... [and thus] fell outside the Apprendi rule." Id. at 12-13 , 72 P.3d at 484-85 .

In reaching that conclusion about the importance of facts being "elemental" rather than "extrinsic," this court appeared to rely on language in Apprendi that responded to the State of New Jersey's argument that a finding of racial bias under the hate crime statute involved nothing more than the "traditional 'sentencing factor' of motive." Id. ; see Apprendi , 530 U.S. at 492-93 , 120 S.Ct. 2348 . Specifically, the Court in Apprendi disagreed with the State's suggestion that the hate crime statute required "simply an inquiry into 'motive,' " noting that "[t]he defendant's intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense 'element.' " 530 U.S. at 492-93 , 120 S.Ct. 2348 .

However, the Court in Apprendi immediately went on to explain that the characterization of the required finding did not matter, and to repeat the holding of the case:

The foregoing notwithstanding, however, the New Jersey Supreme Court correctly recognized that it does not matter whether the required finding is characterized as one of intent or of motive, because "[l]abels do not afford an acceptable answer." That point applies as well to the constitutionally novel and elusive distinction between "elements" and "sentencing factors." Despite what appears to us the clear "elemental" nature of the factor here, the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?

Apprendi , 530 U.S. at 494 , 120 S.Ct. 2348 (citations omitted) (emphasis added).

Therefore, we hold that the line of demarcation is Apprendi , not Booker or Cunningham , in determining whether extended term sentences imposed without jury findings are subject to collateral attack. Accordingly, we correct the conclusion in Loher and subsequent opinions that the "legal landscape only became clear after Apprendi (2000), Blakely (2004), and Booker (2005), [were] taken together." Loher v. State , 118 Hawai'i 522 , 538, 193 P.3d 438 , 454 (App. 2008). To the extent that our prior opinions and the ICA's prior opinions are contrary to our holding, they are now overruled. 14 Here, a judge, and not a jury, made the required finding that Flubacher's extended term sentence was necessary for the protection of the public. That "required finding expose[d] the defendant to a greater punishment than that authorized by the jury's guilty verdict." Apprendi , 530 U.S. at 494 , 120 S.Ct. 2348 . Therefore, Flubacher's extended term sentences were imposed in an illegal manner because they violate Apprendi .

The Dissent suggests that the rule in Apprendi "was not clear" because the Supreme Court subsequently granted certiorari in Blakely and Booker . Dissent at 142 Hawai'i at 120-22, 414 P.3d at 172-74. Respectfully, the issues addressed in those cases were not needed to clarify the invalidity of this court's extrinsic/intrinsic analysis. Blakely involved the distinct question of whether Apprendi applied to an extended sentence which did not exceed the statutory maximum in a state court proceeding, while Booker addressed a similar issue in the context of the federal sentencing guidelines. Accordingly, cases addressing whether those decisions announced "new" rules for purposes of retroactivity analysis are irrelevant to assessing the validity of Hawai'i's sentencing scheme.

IV. Conclusion

For the foregoing reasons, we conclude that Flubacher's extended term sentences were imposed in an illegal manner. Therefore, we vacate the ICA's October 13, 2016 Judgment on Appeal, the circuit court's April 2, 2015 Order Denying Petition, the portion of the circuit court's September 12, 2003 Judgments and Sentences in Cr. Nos. 01-1-2788, 01-1-2789, 02-1-0089, 02-1-0090, and 02-1-0125 that imposed extended term sentences, and the circuit court's Order Granting Motion for Extended Term of Imprisonment filed September 22, 2003. We remand this case for further proceedings consistent with this opinion. 15

DISSENTING OPINION BY NAKAYAMA, J.

On June 12, 2003, over a decade ago, Petitioner/Petitioner-Appellant Robert Flubacher (Flubacher) pleaded guilty to multiple felonies. Pursuant to the guilty pleas, on July 9, 2003, Respondent/Respondent-Appellee State of Hawai'i (the State) filed a motion for extended term of imprisonment because it believed Flubacher to be a "multiple offender" within the meaning of Hawai'i Revised Statutes (HRS) § 706-662(4)(a). 1 At Flubacher's sentencing hearing on September 12, 2003, the circuit court granted the State's motion, finding that an extended sentence was necessary to protect the public. Flubacher did not directly appeal his convictions or sentence at that time, and therefore his extended sentence became final on October 13, 2003.

Flubacher now seeks to collaterally challenge his extended term sentence through a Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition for post-conviction relief. The Circuit Court of the First Circuit (circuit court) denied his petition, and the Intermediate Court of Appeals (ICA) affirmed the denial. In Flubacher's application for writ of certiorari, he raises two issues. First, Flubacher argues that his extended term sentence was illegal under the United States Supreme Court's (Supreme Court) decisions in Apprendi v. New Jersey , 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona , 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). He further argues that the Supreme Court's later decision in Cunningham v. California , 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), should retroactively apply to his sentence. Second, Flubacher contends that he did not waive his claim that the circuit court erred when it found that he had "bashed" a woman with a hammer at sentencing.

The Majority holds that Flubacher's sentence was illegal under the Supreme Court's decision in Apprendi and remands his case to the circuit court for further proceedings. Majority at 142 Hawai'i at 111, 414 P.3d at 163. In doing so, the Majority overrules countless decisions of this court holding the opposite-that at the time that Flubacher's sentence became final, our extended sentence scheme was not illegal under Apprend i . Majority at 142 Hawai'i at 118 n.14, 414 P.3d at 170 n.14. Because I believe that the rule in Apprendi only became clear after Flubacher's sentence became final, and because the circuit court did not abuse its discretion in imposing Flubacher's sentence, his extended term sentence was not illegal and he has no claim for post-conviction relief. I would therefore affirm the ICA's October 13, 2016 Judgment on Appeal.

Accordingly, I respectfully dissent.

I. DISCUSSION

A. Flubacher's extended sentence was not illegal under Apprendi , Ring , or Cunningham .

At the outset, I note my agreement with much of the Majority's exposition and analysis of our case law after the Supreme Court's decision in Apprendi . I agree that we repeatedly concluded for several years after Apprendi that Hawai'i's extended sentence statutory scheme, HRS § 702-662, comported with Apprendi because it reserved to the jury a finding of facts "intrinsic" to the offense charged while allowing a judge to determine facts "extrinsic" to the offense charged. 2 Majority at 142 Hawai'i at 115-16, 414 P.3d at 167-68. I also joined the opinion of the court in State v. Maugaotega , 115 Hawai'i 432 , 168 P.3d 562 (2007) ( Maugaotega II ), where we acknowledged that the Supreme Court, in several decisions after Apprend i (and most importantly, its decision in Cunningham ), "rejected the validity of the intrinsic/extrinsic distinction, which formed the basis of these decisions." Majority at 142 Hawai'i at 115, 414 P.3d at 167. At that time, this court concluded that HRS § 702-662 was "unconstitutional on its face." Maugaotega II , 115 Hawai'i at 447 , 168 P.3d at 577. But now the Majority moves forward the date of our statute's unconstitutionality a full seven years before Maugaotega II , concluding that the Apprendi rule was clear on the day it was decided. Majority at 142 Hawai'i at 117-18, 414 P.3d at 169-70. I disagree.

1. When Flubacher's sentence became final, the rule in Apprendi was not clear and our extended sentence scheme was not unconstitutional.

The Majority asserts that it was the Apprendi decision itself, decided on June 26, 2000, that made our extended sentence statute unconstitutional. Majority at 142 Hawai'i at 118-19, 414 P.3d at 170-71. As such, the Majority similarly concludes that Flubacher's extended sentence, which became final in 2003, is illegal. Majority at 142 Hawai'i at 118-19, 414 P.3d at 170-71.

To take this drastic step, the Majority wholly rejects this court's consistent decisions holding the opposite-that our extended sentence scheme was not unconstitutional, and in conformity with Apprendi . Majority at 142 Hawai'i at 115-16, 414 P.3d at 167-68 (citing cases). It does so by claiming that the holding in Apprendi was "clear" and this court's decisions to the contrary were erroneous.

Majority at 142 Hawai'i at 117-18, 414 P.3d at 169-70. But I am not so certain that the rule was clear in 2000. Neither, it seems, was the Supreme Court.

The issue in Apprendi was whether New Jersey's hate crime statute (allowing a sentencing judge to impose an extended sentence if the defendant committed an offense "with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity") violated the United States Constitution. 530 U.S. at 468-69 , 120 S.Ct. 2348 . The Supreme Court, in a 5-4 decision, concluded that the statute had done so because a judge had found a fact extending Apprendi's sentence beyond the statutory maximum, i.e., that Apprendi had acted "with a racially biased purpose." Id. at 471 , 120 S.Ct. 2348 . The Supreme Court then held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi , 530 U.S. at 490 , 120 S.Ct. 2348 . The Majority considers this language clear, and because Hawai'i's extended sentence scheme allowed judges to find certain "extrinsic" facts to impose an extended term sentence, it concludes that our scheme contravened Apprendi 's clear holding. Majority at 142 Hawai'i at 117-18, 414 P.3d at 169-70.

But subsequent developments in the Supreme Court demonstrate that this supposedly "clear" rule was not so clear in 2000. The Supreme Court's decisions in Blakely v. Washington , 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and United States v. Booker , 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), illustrate that the Apprendi rule was still being discussed and debated after 2000, and federal and state appellate courts (not to mention Supreme Court justices) continued to disagree on its holding.

In Blakely , the Supreme Court granted certiorari "to apply the rule [it] expressed in Apprendi [.]" 542 U.S. at 301 , 124 S.Ct. 2531 . Washington's sentencing scheme allowed a judge to impose a sentence above a standard range prescribed by statute if he or she found "substantial and compelling reasons," as long as that sentence did not exceed the absolute maximum punishment provided by statute. Id. at 299 , 124 S.Ct. 2531 . In Blakely , the defendant pleaded guilty to second-degree kidnapping, which was a class B felony. Id. The sentencing court then found that the defendant acted with "deliberate cruelty" (a statutorily enumerated ground for a departure from the standard range), and in accordance with Washington's extended sentence statute, extended the defendant's sentence from the standard prison term of 49-53 months to 90 months. Id. at 300 , 124 S.Ct. 2531 . The 90-month extended term was longer than the statutory maximum for second-degree kidnapping, but shorter than the absolute maximum prison term of ten years for class B felonies. Id. at 300, 303 , 124 S.Ct. 2531 .

The Washington Court of Appeals affirmed the sentence in accordance with State v. Gore , where the Washington Supreme Court held that Washington's statutory scheme complied with Apprendi because the statute only permitted a judge to impose an extended sentence if it was "within the range determined by the Legislature and not exceeding the maximum." 143 Wash.2d 288 , 21 P.3d 262 , 301 (2001).

In the Supreme Court, Washington argued that its statute complied with the Apprendi rule because the defendant did not actually receive a sentence beyond the statutory maximum for class B felonies (e.g. 10 years). 3 Blakely , 542 U.S. at 303 , 124 S.Ct. 2531 . However, the Supreme Court, in another 5-4 decision, invalidated the defendant's extended sentence. Id. at 305 , 124 S.Ct. 2531 . In doing so, it clarified that for Apprendi purposes, the relevant "statutory maximum" is the maximum sentence a judge may impose without any additional findings. Id.

On its face, the facts in Blakely seem analogous to the facts in Apprendi . If a judge cannot find that a defendant acted with "racial bias," then surely a plain reading of Apprendi would have demanded that a judge could not find that a defendant acted with "deliberate cruelty." 4 However, the Washington court's interpretation of "statutory maximum" in the context of Apprendi , along with the Supreme Court's clarification of that term in Blakely , indicates that the Apprendi rule was not clear when it was announced in 2000.

A year later, the Supreme Court again analyzed Apprendi in Booker , and held that the Federal Sentencing Guidelines, which required a sentencing judge to find additional facts before sentencing a defendant to a longer sentence, was no different than Washington's statute in Blakely . 543 U.S. at 235 , 125 S.Ct. 738 . The Supreme Court then further clarified Apprendi and held that the "mandatory nature" of the federal guidelines made it more akin to a law than a guideline, and therefore the mandatory provisions were incompatible with the Apprendi rule. Id. at 233-34 , 125 S.Ct. 738 . Again, the decision by the Supreme Court to grant certiorari in Booker further indicates that the Apprendi rule's application to federal and state extended sentence schemes like Hawai'i's needed to be clarified. Moreover, the subsequent decisions of numerous federal courts of appeals interpreting the Blakely and Booker rules as "new" rules of criminal procedure (and not "old" rules that merely applied precedent existing at the time, cf. Teague v. Lane , 489 U.S. 288 , 301, 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (plurality opinion) ) 5 provide further evidence that the original Apprendi rule was unclear at the time that Blakely and Booker were decided.

Given this history, I would hold that the line of demarcation is not Apprendi , but Booker -only at that time, after the Apprendi rule was re-analyzed and clarified, did it become apparent that our extended sentence scheme was unconstitutional.

For the same reasons, I believe the State's concession that " any extended term sentence imposed after June 26, 2000, in which the court, not a jury, found the fact of 'necessary for protection of the public' [was] in violation of Apprendi" was not well-founded. Contra Majority at 142 Hawai'i at 114, 414 P.3d at 166. This court has consistently noted that a State's concession is not binding on an appellate court, and it remains "incumbent on the appellate court [first] to ascertain ... that the confession of error is supported by the record and well-founded in law." State v. Hoang , 93 Hawai'i 333 , 336, 3 P.3d 499 , 502 (2000) (alterations in original).

As stated previously, this court held repeatedly that our intrinsic/extrinsic distinction was in complete conformity with Apprendi until Maugaotega II . See Kaua , 102 Hawai'i at 12-13 , 72 P.3d at 484-85 ; State v. Rivera , 106 Hawai'i 146 , 159-60, 102 P.3d 1044 , 1057-58 (2004), cert. denied , 546 U.S. 829 , 126 S.Ct. 45 , 163 L.Ed.2d 78 (2005) ; 6 State v. Maugaotega , 107 Hawai'i 399 , 409-10, 114 P.3d 905 , 915-16 (2005) ( Maugaotega I ); White , 110 Hawai'i at 81 , 129 P.3d at 1109 . Because I believe the Apprendi rule was not clear in 2000 to indicate to this court that our intrinsic/extrinsic distinction was unconstitutional, I also believe that the State's concession to that effect was not "well-founded in law." 7

2. Cunningham cannot retroactively apply to Flubacher's sentence.

Because I do not believe Flubacher's extended sentence is illegal under Apprendi , I must also address whether the Supreme Court's 2007 decision in Cunningham , 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 , retroactively makes his extended sentence illegal. It cannot.

On January 22, 2007, the Supreme Court held in Cunningham that California's determinate sentencing law (DSL) violated the Apprendi rule because it allowed a judge to find an aggravating factor that then permitted the judge to order an "upper term" determinate sentence. 549 U.S. at 277 , 127 S.Ct. 856 . In so doing, the Supreme Court relied on its rule in Apprendi , as applied in Blakely and Booker . Id. at 282 , 127 S.Ct. 856 (" Blakely and Booker bear most closely on the question presented in this case."). At that time, the Supreme Court majority also emphatically rejected the dissent's argument in favor of a bifurcated approach, one in which the Apprendi rule would apply to sentencing enhancements based on the nature of the offense, while "judicial determination [would be] appropriate with regard to factors exhibited by the defendant" like prior convictions. Id. at 297 , 127 S.Ct. 856 (Kennedy, J., dissenting). 8 Apprendi , the Supreme Court majority responded, "leaves no room for the bifurcated approach Justice Kennedy proposes." Id. at 291 , 127 S.Ct. 856 n.14.

Flubacher argues that Cunningham should retroactively apply to his case on collateral review, because it did not announce a new rule. A case announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague , 489 U.S. at 301 , 109 S.Ct. 1060 (plurality opinion) (emphasis in original). New rules of criminal procedure are not entitled to retroactive application on collateral review. Id. at 303 , 109 S.Ct. 1060 .

Cunningham did not announce a new rule because there is no discernible difference between California's DSL and Washington's sentencing scheme determined to be unconstitutional in Blakely . California's DSL allowed a judge to order an "upper term" sentence instead of the standard "middle term" if he or she found "circumstances in aggravation." Cunningham , 549 U.S. at 277 , 127 S.Ct. 856 . The Washington statute essentially did the same thing: it allowed a judge to impose a sentence above the standard range if he or she found "substantial and compelling reasons." Blakely , 542 U.S. at 299 , 124 S.Ct. 2531 . Because it appears that the Supreme Court merely applied "precedent existing at the time" (i.e., the rule announced and clarified in Apprendi , Blakely , and Booker ), Cunningham did not announce a new rule. Accord Butler v. Curry , 528 F.3d 624 , 636 (9th Cir. 2008).

But that does not end the retroactivity inquiry. We must also determine what precedent(s) dictated the "old" rule in Cunningham . See Teague , 489 U.S. at 301 , 109 S.Ct. 1060 . I believe Cunningham only announced an old rule because "[t]aken together, Apprendi , Blakely , and Booker , firmly established that a sentencing scheme in which the maximum possible sentence is set based on facts found by a judge is not consistent with the Sixth Amendment." Accord Butler , 528 F.3d at 635 . As discussed previously, Apprendi , Blakely , and Booker all announced new rules. 9 As such, those cases cannot apply retroactively. See Teague , 489 U.S. at 303 , 109 S.Ct. 1060 .

But Cunningham only retroactively applies because it relied on Apprendi , Blakely , and Booker . See Cunningham , 549 U.S. at 282 , 127 S.Ct. 856 . Therefore, only sentences imposed after Apprendi , Blakely , and Booker should be entitled to retroactive application of Cunningham . Because Flubacher's sentence became final before Blakely and Booker were decided, Flubacher is not entitled to retroactive application of Cunningham . Accord Loher v. State , 118 Hawai'i 522 , 538, 193 P.3d 438 , 454 (App. 2008) (citing Butler , 528 F.3d at 635-36 ), overruled on other grounds by State v. Auld , 136 Hawai'i 244 , 254, 361 P.3d 471 , 481 (2015).

Finally, while the Teague retroactivity analysis does not apply to the Majority's decision to reverse Flubacher's extended sentence (because Apprendi was decided before Flubacher's sentence became final), I respectfully echo the concern with finality raised in that case. In Teague , the Supreme Court noted that "[w]ithout finality, the criminal law is deprived of much of its deterrent effect." Teague , 489 U.S. at 309 , 109 S.Ct. 1060 (plurality opinion).

True, the Majority does not announce a "new" rule in the technical sense, as it holds that the Apprendi rule was clear before Flubacher's sentence became final. Majority at 142 Hawai'i at 117-18, 414 P.3d at 169-70. But the Majority does uproot our long-established belief in the constitutionality of our extended sentence scheme, and now invites any defendant who received an extended sentence after June 26, 2000 to collaterally challenge that sentence if a judge found a fact needed to impose that sentence. While it is true that the petitioner's sentence would simply be vacated and remanded for another sentencing hearing in accordance with Apprendi and its progeny, the re-opening of these cases would, in my opinion, "seriously undermin[e] the principle of finality which is essential to the operation of our criminal justice system." Cf. Teague , 489 U.S. at 309 , 109 S.Ct. 1060 (plurality opinion); see also Mackey v. United States , 401 U.S. 667 , 691, 91 S.Ct. 1160 , 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part) ("No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day after his continued incarceration shall be subject to fresh litigation....").

B. The circuit court did not abuse its discretion in ordering Flubacher's extended sentence.

Briefly, while the ICA erred in holding that Flubacher waived his second issue on certiorari, the record demonstrates that the circuit court did not abuse its discretion in imposing Flubacher's extended sentence. Flubacher argues on certiorari that he did not waive his claim that "the sentencing judge erroneously found that [Flubacher] 'bashed' a woman with a hammer and then relied on that erroneous finding in extending [his] sentences[.]" HRPP Rule 40(a)(3) generally precludes petitioners from seeking post-conviction relief on claims that were waived, "[e]xcept for a claim of illegal sentence." 10 Here, Flubacher specifically alleges that because the circuit court relied on erroneous testimony, his sentence was illegal. Therefore, Flubacher did not waive this issue. See HRPP Rule 40(a)(3).

However, on the merits of Flubacher's claim, I believe that the record demonstrates that the circuit court did not abuse its discretion in ordering an extended term sentence. Sentencing decisions are reviewed under the abuse of discretion standard. State v. Sanney , 141 Hawai'i 14 , 19, 404 P.3d 280 , 285 (2017). "Generally, to constitute an abuse of discretion, 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." Id.

At sentencing, the circuit court stated:

You were on parole when you committed these offenses. You have an extensive criminal history of convictions and arrests. This criminality has continued despite your many contacts, and I was well aware of the other situation 'cause I had your case for years.

You failed to benefit in some ways, in many ways from the criminal justice system such that you took a hammer and bashed poor Ms. Hites. She had her own difficulties, but that's not on her father. It's on you. You stole the car, did the multiple robberies. You have demonstrated, if not a total disregard, almost a total disregard for the rights of others and a bad attitude about the law and the rules that guide our society.

This is indeed a pattern of criminality, and, uh, given the seriousness of the instant offenses, I will make-respectfully make the finding you are a serious threat to our community and that you need this sentence. This does not keep you from getting paroled at the right time.

While Flubacher disputes that he hit Ms. Hites with a hammer, and only pleaded to "kicking" her, the circuit court also cited several other undisputed factors in its decision-that Flubacher committed "multiple robberies" and demonstrated a "pattern of criminality" which made him a serious threat to the community. Flubacher does not dispute that he pleaded guilty to multiple felonies. As previously discussed, at the time that Flubacher was sentenced, HRS § 706-662(4)(a) allowed judges to find the facts "extrinsic" to the offenses charged in imposing extended sentences, including whether a defendant committed multiple felonies. Kaua , 102 Hawai'i at 13 , 72 P.3d at 485 . On these bases, the circuit court did not abuse its discretion in ordering Flubacher's extended term sentence.

II. CONCLUSION

I acknowledge that if Flubacher received an extended term sentence based on facts found by a judge today, his sentence would be unconstitutional. See Maugaotega II , 115 Hawai'i at 446-47 , 168 P.3d at 576-77. 11 However, in 2003, it was not clear that the imposition of an extended sentence on a criminal defendant based upon a judge's finding of a fact "extrinsic" to the offense was unconstitutional. To the contrary, this court repeatedly upheld the intrinsic/extrinsic distinction our courts drew in interpreting our extended sentence scheme. See, e.g. , Kaua , 102 Hawai'i at 13 , 72 P.3d at 485 .

In my view, the Majority too easily overlooks subsequent Supreme Court decisions clarifying Apprendi and too quickly abandons our case law upholding the constitutionality of our extended sentence scheme. In moving the line of demarcation separating legal and illegal extended term sentences forward seven years, the Majority also re-opens cases that should be left final.

Instead, the line of demarcation should be drawn at a date in which the Apprendi rule was clear and fully explicated. I agree with several federal courts of appeal that the date should be placed after the Supreme Court decided Blakely and Booker . Therefore, I would only hold as unconstitutional any extended term sentence imposed after January 12, 2005 where a judge, and not a jury, found a fact needed to impose that sentence. Here, because Flubacher's sentence was imposed in accordance with our statutory scheme and became final before the Supreme Court decided Booker , his sentence cannot be unconstitutional, and he is not entitled to post-conviction relief.

For these reasons, I would affirm the ICA's October 13, 2016 Judgment on Appeal. I respectfully dissent.