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NO. CAAP-19-0000724

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

DAVID T. PREBLE, also known as

David Taofiaualii Preble, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1PC990002363 (CR. NO. 99-2363))

MEMORANDUM OPINION

(By: Ginoza, C.J., and Hiraoka, and Wadsworth, JJ.)

Defendant-Appellant David T. Preble, also known as

David Taofiaualii Preble (Preble), appeals from the Third Amended

Judgment of Conviction and Sentence (Third Amended Judgment),

entered on September 24, 2019, in the Circuit Court of the First

Circuit (circuit court).1/ 

After Preble was convicted, sentenced, and exhausted

his appeals, he filed a petition for post-conviction relief

pursuant to Hawai#i Rules of Penal Procedure (HRPP) Rule 40. He

later amended his petition to contend that his extended-term

sentences were "illegal sentences" under Apprendi v. New Jersey,

530 U.S. 446 (2000). In June 2018, the Hawai#i Supreme Court

vacated Preble's extended-term sentences, ruling that they were

imposed in an illegal manner because a judge, rather than a jury,

made the required finding that Preble's extended-term sentences

were necessary for protection of the public. Preble v. State,

No. SCWC-14-0000531, 2018 WL 3203435, at *1-2 (Haw. June 29,

1/ The Honorable Edward H. Kubo, Jr. presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000724

16-JUN-2021

08:01 AM

Dkt. 85 MO
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2018) (2018 SDO). On remand, the circuit court resentenced

Preble on the multiple counts for which he was convicted, and he

now appeals the new sentence. 

In this appeal, Preble contends that the circuit court

erred in imposing consecutive rather than concurrent sentences on

remand because: (1) concurrent terms were the law of the case;

(2) reconsideration of the issue of consecutive terms was a

violation of Preble's right to due process and trial by jury; (3)

Plaintiff-Appellee State of Hawai#i (State) waived the issue of

consecutive sentences; and (4) consecutive terms of imprisonment

should not be imposed without supporting findings by a jury. 

Additionally, in his reply brief, Preble argues in the

alternative that this case should be remanded for a recalculation

of credit for time served pursuant to the supreme court's recent

decision in State v. Thompson, No. SCWC-17-0000427, 2020 WL

2846618 (Haw. June 1, 2020) (SDO).2/

For the reasons set forth below, we vacate the Third

Amended Judgment solely as to the resentencing imposed therein,

and remand for further resentencing proceedings, including an

accurate calculation of Preble's credit for time served,

consistent with this Memorandum Opinion and Thompson.

I. Background

This case has a long history, which is described in

detail in the supreme court's 2018 SDO and our 2017 decision,

Preble v. State, No. CAAP-14-0000531, 2017 WL 1050339, at *1

(Haw. App. Mar. 17, 2017) (2017 SDO) (vacated in part by the 2018

SDO). 

In brief, a jury found Preble guilty in 2001 of eleven

counts of sexually assaulting three sisters, when each was under

the age of fourteen.3/ Preble was convicted of three counts of

2/ On April 27, 2021, this court entered an order permitting the

parties each to file, within 20 days of the date of the order, a supplemental

brief addressing the import of the Thompson decision to this appeal. Preble

and the State filed their respective supplemental briefs on May 16 and May 17,

2021, respectively. 

3/ In two prior trials, the jury was unable to reach a unanimous

verdict. 

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first-degree sexual assault, in violation of Hawaii Revised

Statutes (HRS) § 707-730(1)(b) (1993) (a class A felony), and

eight counts of third-degree sexual assault, in violation of HRS

§ 707-732(1)(b) (1993) (a class C felony). 

As we described in the 2017 SDO:

[The State] moved for extended terms of imprisonment on the

ground that Preble was a multiple offender whose commitment

for extended terms was necessary for protection of the

public. The Circuit Court granted the motion, finding,

among other things, that extended terms for the protection

of the public were warranted because Preble's assaultive

behavior had continued unabated for twenty years from the

time he was a juvenile; there was documented evidence of his

methamphetamine use; and his assaultive behavior was of an

extreme nature and included a 1991 conviction for

second-degree robbery, which involved his beating of a

73-year-old man, and his sexual assault of three minor girls

under the age of fourteen in the pending case.

Preble, 2017 WL 1050339, at *1 (footnote omitted). The circuit

court sentenced Preble to a term of twenty years, extended to

life with the possibility of parole, for each of the class A

felony convictions, and a term of five years, extended to ten

years, for each of the class C felony convictions. Id. The

circuit court "ran these terms concurrently with each other, but

consecutively to the ten-year term for second-degree robbery that

Preble was still serving."4/ Id.

We further explained in the 2017 SDO: 

The Circuit Court entered its amended judgment on

November 19, 2001, and Preble filed a direct appeal. In a

summary disposition order issued on December 3, 2004, this

court affirmed the Circuit Court's amended judgment. State

v. Preble, No. 24680, 2004 WL 2757909 (Hawai#i App. Dec. 3,

2004). In our decision, we addressed and rejected Preble's

claims that: (1) the Circuit Court erred in denying his

motion to dismiss the indictment for pre-indictment delay;

(2) Preble's right to a speedy trial under [HRPP] Rule 48

. . . had been violated; (3) Preble's trial counsel was

ineffective for failing to move to dismiss the indictment

based on the destruction of evidence favorable to the

defense, namely, pubic hair, vaginal swabs, and blood

samples taken from one of the complaining witnesses; (4)

Preble's trial counsel was ineffective in failing to move to

dismiss the indictment based on the statute of limitations;

(5) Preble's trial counsel was ineffective for failing to

4/ In 1991, Preble was sentenced to, among other things, five years

probation, including a one-year jail term, for the second-degree robbery

conviction in Case No. 1PC900001363. On June 16, 1994, Preble's probation was

revoked and he was "resentenced to the custody of the Director of the

Department of Public Safety for a period of ten (10) years of jail

confinement, with credit for time served."

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object to testimony about a purported bad act of Preble; (6)

Preble's trial counsel was ineffective in her handling of a

medical expert witness for the State; (7) the Circuit Court

erred in denying Preble's motion for a bill of particulars;

(8) the Circuit Court punished Preble for exercising his

right to a trial; and (9) the testimonies of the three

complaining witnesses were not credible as a matter of law. 

Preble, 2004 WL 2757909, at *1-3.

. . . .

On September 26, 2011, Preble filed a "Petition to

Vacate, Set Aside, or Correct Judgment or to Release

Petitioner from Custody" (Petition) pursuant to HRPP Rule 40

. . . . Preble raised the following grounds for relief in

his Petition: (1) the State destroyed evidence that could

have been exculpatory evidence and thus failed to disclose

evidence favorable to the defendant; (2) trial counsel was

ineffective for failing to move to dismiss the case based on

the destruction of exculpatory evidence; and (3) appellate

counsel was ineffective for failing to raise the issue of

the destruction of exculpatory evidence on appeal. On

November 12, 2013, Preble moved to amend his Petition to add

as an additional ground for relief that his extended term

sentences were illegal [under Apprendi5/] because they were

based on facts found by a judge, and not a jury. . . .

2017 WL 1050339, at *1-2 (emphasis and footnote added).

On January 30, 2014, the circuit court denied the

Petition. Id. at *2. Preble appealed the denial to this court,

and on March 17, 2017, we affirmed the circuit court in a summary

disposition order. Id. at *1-3. The supreme court accepted

Preble's application for writ of certiorari on July 5, 2017. 

Preble, 2018 WL 3203435, at *1. 

On June 29, 2018, the supreme court issued the 2018 SDO

vacating Preble's extended-term sentences. Id. at *2. The court

concluded that "Preble's extended-term sentences were imposed in

an illegal manner," in violation of Apprendi, because a judge,

rather than a jury, made the required finding that Preble's

extended-term sentences were necessary for protection of the

public. Id. The supreme court had recently recognized the

applicability of the Apprendi decision to Hawaii's system of

extended-term sentencing in Flubacher v. State, 142 Hawai#i 109,

414 P.3d 161 (2018). See 2018 WL 3203435, at *1. Accordingly,

the court vacated: 

5/ In Apprendi, the United States Supreme 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." 530 U.S. at 490. 

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section D of the ICA's Summary Disposition Order, the

portion of the ICA's March 31, 2017 Judgment on Appeal

solely relating to extended sentences, the circuit court's

January 30, 2014 "Order Denying Post-Conviction Relief

Without a Hearing" denying Preble's HRPP Rule 40 petition,

the portions of the circuit court's "Amended Judgment Guilty

Conviction and Sentence" filed on November 19, 2001, solely

relating to extended sentences, and the portions of the

"Findings of Fact, Conclusions of Law and Order Granting

State's Motion for Extended Term of Imprisonment" filed

December 6, 2001, solely relating to extended sentences.

2018 WL 3203435, at *2. The supreme court affirmed this court's

summary disposition order and March 31, 2017 Judgment on Appeal

as to all other matters, and remanded the case "to the circuit

court for further proceedings consistent with this summary

disposition order." Id. 

On remand, the circuit court held a jury trial to

decide, among other things, whether extended terms of

imprisonment were "necessary for the protection of the public[.]" 

On June 21, 2019, the jury found that the State had not proven

beyond a reasonable doubt that extended terms of imprisonment

were necessary for the protection of the public. The circuit

court ordered a new presentence investigation report and

scheduled the matter for resentencing.

On August 14, 2019, the State filed a motion to

sentence Preble as a repeat offender and a motion for consecutive

sentencing. At resentencing on September 23, 2019, the circuit

court granted both motions and sentenced Preble to consecutive

terms of imprisonment,6/ totaling thirty-five years, with credit

6/ Preble was sentenced to five years imprisonment, with mandatory

minimum terms of three years and four months, in counts 1-6 and 15-16 ( i.e.,

the class C felony counts), and twenty years imprisonment, with mandatory

minimum terms of six years and eight months, in counts 7, 12, and 13 ( i.e.,

the class A felony counts). The consecutive terms were ordered as follows:

1. Counts 1 and 2 (CW [Minor identified as JLR (JLR)])

shall be consecutive to Counts 3 to 6 (CW [Minor

identified as JPR (JPR)]), Counts 7, 12 and 13 (CW

[Minor identified as JHR (JHR)]) and to Counts 15 and

16 (CW [JHR] extenuating circumstances)

2. Counts 3 to 6 (CW [JPR]) shall be consecutive to

Counts 1 and 2 (CW [JLR]), Counts 7, 12 and 13 (CW

JHR) and to Counts 15 and 16 (CW [JHR] extenuating

circumstances)

3. Counts 7, 12 and 13 (CW [JHR]) shall be consecutive to

Counts 1 and 2 (CW [JLR]), to Counts 3 to 6 (CW

[JPR]), and to Counts 15 and 16 (CW [JHR] extenuating

(continued...)

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for time served to be determined by the State Department of

Public Safety. On December 18, 2019, the circuit court entered

its "Findings of Fact, Conclusion[s] of Law, and Order Granting

State's Motion for Consecutive Sentencing" (FOFs/COLs).7/

Preble filed his notice of appeal on October 23, 2019. 

II. Discussion

A. Law of the Case

Preble contends that the imposition of consecutive

sentences was barred by the law of the case, because the Hawai#i

Supreme Court was "very specific in vacating only the portion of

Preble's sentence pertaining to the extended term of

6/ (...continued)

circumstances)

4. Because of the extenuating circumstances, namely, the

nature of the victimization to [JHR] (i.e., grooming,

intimidation, threats, blackmail, lies, and using her

to springboard his evil desires on the other 2

sisters), the length of her victimization (3 years),

and the degree of sexual and emotional damage done to

[JHR], Counts 15 and 16 shall be separated from Counts

7, 12 and 13, and shall also be consecutive to Counts

1 and 2 (CW [JLR]), Counts 3 to 6 (CW [JPR]), and to

Counts 7, 12 and 13 (CW [JHR]) because dividing

[JHR]'s Counts in this manner will more realistically

reflect the seriousness of the offenses committed to

her and provide just punishment[.]

The circuit court further ordered that "[t]his case shall run consecutively to

any other sentence that [Preble] served."

7/ FOFs/COLs 36 through 39 clarify the structure of the new sentence

as follows:

36. The Court has the discretion to make the

punishment fit the crime as well as the needs of the

individual defendant in this community. Thus, this Court

will impose consecutive sentencing.

37. The grouping shall be per victim.

38. Counts 1 & 2, involving JLR, shall run

concurrently to each other, but consecutively to Counts 3

through 6 involving JPR. At the time of these offenses, JPR

was ten years of age. Counts 7, 12 and 13 shall run

concurrently to each other, but consecutively to the

aforementioned counts.

39. Because JHR suffered the most damage and the most

prolonged sexual abuse in this matter, and given the

grooming that took place, the intimidation, the lies and the

deception/blackmail to remain silent, Counts 15 and 16 will

be grouped separately and run consecutively to all of the

aforementioned counts.

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imprisonment" and "[t]he order clearly and distinctly limits any

reconsideration of Preble's sentence to the issue of extended

terms of imprisonment." (Capitalization altered.) Preble

asserts that "[t]he circuit court simply ignored the Supreme

Court's order and directions and proceeded to . . . consider a

new motion for repeat offender and the issue of consecutive

sentences which had never before been raised by the state."8/

According to Preble, "[t]he circuit court had no discretion [to]

reconsider the concurrent terms of imprisonment," which had been

determined by the original sentencing judge. 

The State, on the other hand, argues that "the Hawai#i

Supreme Court neither explicitly [n]or implicitly ruled on

whether consecutive sentencing was appropriate in this case." 

According to the State:

[The supreme court's] legal decision with respect to the

sentence in this case was only as to whether extended-term

sentencing was legal absent jury found facts. Nor did the

trial court previously rule on this issue because at the

time that Preble was sentenced it was assumed that extendedterm sentencing was available.

 

Thus, the State asserts, "there was no 'law of the case' to

follow" with respect to consecutive-term sentencing. The State

further argues that even if the original sentencing judge had

declined to apply consecutive terms, "the Hawai#i Supreme Court's

decision that extended-term sentencing was illegal absent jury

found facts and the jury's subsequent determination that an

extended-term sentence was not necessary were a fundamental

change in the facts that the circuit court could . . . take into

account." 

The Hawai#i Supreme Court has described the law of the

case doctrine as follows:

The law of the case doctrine holds that "a determination of

a question of law made by an appellate court in the course

of an action becomes the law of the case and may not be

disputed by a reopening of the question at a later stage of

the litigation." Fought & Co. v. Steel Eng'g & Erection,

8/ Preble does not challenge the circuit court's ruling on the

State's motion to sentence Preble as a repeat offender pursuant to HRS 706-

606.5. The court concluded that it "w[ould] not disturb" the ruling of the

original sentencing judge, which granted the State's original motion to

sentence Preble as a repeat offender. 

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Inc., 87 Hawai#i 37, 48–49, 951 P.2d 487, 498–99 (1998)

(citation omitted). "This doctrine applies to issues that

have been decided either expressly or by necessary

implication." Id. In other words, "the usual practice of

courts to refuse to disturb all prior rulings in a

particular case" is referred to as the "law of the case"

doctrine. Chun v. Bd. of Trs. of the Emps.' Ret. Sys. of

State of Hawaii, 92 Hawai#i 432, 441, 992 P.2d 127, 136

(2000) (citations omitted). "Unless cogent reasons support

the second court's action, any modification of a prior

ruling of another court of equal and concurrent jurisdiction

will be deemed an abuse of discretion." Wong v. City & Cty.

Of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162 (1983)

(emphasis omitted). Consequently, the "law of the case"

doctrine "does not preclude modification of a prior ruling

in all instances." Stender v. Vincent, 92 Hawai#i 355, 361,

992 P.2d 50, 56 (2000).

Hussey v. Say, 139 Hawai#i 181, 185, 384 P.3d 1282, 1286 (2016).

In State v. Thompson, this court rejected the

defendant's argument that the law of the case doctrine precluded

the circuit court from imposing consecutive sentences upon

resentencing, where the "original judge had imposed concurrent,

not consecutive, sentences." No. CAAP-17-0000427, 2018 WL

4611273, at *6 (Haw. App. Sept. 26, 2018), vacated on other

grounds, 2020 WL 2846628 (Haw. June 1, 2020). We reasoned that

the original sentencing judge concluded that consecutive

terms were not necessary because [the defendant] had

received multiple life sentences. When the life sentences

were set aside, it resulted in a change of fact that

affected [the defendant's] resentencing that the original

sentencing judge did not consider.

Id. We concluded "there were cogent reasons to support granting

consecutive terms during resentencing." Id.

Here, as an initial matter, the supreme court's 2018

SDO did not preclude the circuit court's imposition of

consecutive sentences on remand. The only sentencing issue

raised and decided in Preble's previous appeal was whether his

extended-term sentences were imposed in an illegal manner because

they violated Apprendi, as construed by the supreme court in

Flubacher. Accordingly, in concluding that Preble's extendedterm sentences were improperly imposed for that reason, the

supreme court vacated the relevant decisions of this court and

the circuit court "solely relating to extended sentences." 

Preble, 2018 WL 3203435, at *2. The supreme court thus did not

rule on whether consecutive sentencing was appropriate in this

case. Absent "a determination of [this] question of law," the

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supreme court established no "law of the case" that precluded the

circuit court from imposing consecutive sentences on remand. 

Hussey, 139 Hawai#i at 185, 384 P.3d at 1286.

Further, as in Thompson, the original sentencing

judge's decision to impose extended terms rather than consecutive

terms did not preclude the circuit court from imposing

consecutive terms on remand, following the supreme court's 2018

SDO. The original sentencing judge declined to impose

consecutive terms9/ based on the implicit premise that extendedterm sentencing was legal and available without jury findings. 

Specifically, during Preble's original sentencing hearing, the

circuit court stated in relevant part:

The court finds that consecutive sentencing in

this case with respect to each of the counts is

nonsensical because it totals up to one hundred 40

years.

And the life sentence in itself is more

reasonable under the circumstances.

So with respect to counts 7, 12 and 13, based on

the evidence that all offenses the defendant has

committed are against people, the court finds that

defendant is a danger to the public and extends to

life terms[.] [I]n counts 1 to 6 and counts l5 and

9/ While the State had not sought consecutive-term sentencing,

defense counsel argued in part as follows during Preble's sentencing hearing:

Essentially, Your Honor, it's our position that the

Court did not necessarily have to impose the extended term

because the Court was well aware, if the Court wants to

implement a term of incarcer[a]tion for Mr. Preble, it has

as its option to essentially what would amount to a life

term. In any event, by sentencing him to a consecutive

term.

Apparently, he's been convicted of three Class A

felonies. Plus, he has a number of Class C, and the Court

knows that you can impose a consecutive sentence on this

which would equal [a] hundred years.

THE COURT: State has not asked for consecutive term.

[DEFENSE COUNSEL]: Your honor, State doesn't have to

ask for consecutive for the Court to impose that sentence,

seems to me. 

. . . .

. . . Because if you are inclined to give him life,

you have at your option imposing a consecutive term. I am

not advocating the Court do that. I am essentially

advocating that the imposition of an extended term is not

necessary. 

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16[,] [t]hose are also offenses against people and the

court extends the terms to ten years. 

When these extended terms, including the life sentences, were

later set aside, and the jury on remand found that the State had

not proven that extended terms were necessary for protection of

the public, the circuit court faced changed circumstances, i.e.,

the fact that extended sentencing was not available. In these

new circumstances, as in Thompson, there were cogent reasons for

the circuit court to consider imposing consecutive terms upon

resentencing.

In particular, the circuit court made the following

findings and conclusions, among others, supporting its decision

to impose consecutive terms:

29. Under the circumstances, given the gross and

vicious nature of this case and the uncaring, devilish and

damaged character of the defendant, it is clear that a

twenty year sentence is nowhere near sufficient. 

30. A twenty year sentence is nowhere near sufficient

to reflect the seriousness of the instant offenses, promote

respect for the law, provide just punishment in this case or

provide both specific and general deterrence to this type of

criminal conduct. 

31. Imposition of consecutive terms is necessary for

the protection of the public from further crimes of the

Defendant. 

. . . .

35. The Court has evaluated and considered the kinds

of sentences that are available to address this case, and it

has also a need to avoid unwarranted sentencing disparities

with other defendants with similar records who have been

convicted of similar conduct all the while acknowledging

that this is one of the worst child sexual abuse cases the

Court has seen with no remorse on the part of the Defendant. 

This diminishes the likelihood of successful rehabilitation

and only increases the chance of him doing this act again in

the future.

. . . .

40. Defendant's continued refusal to undergo

therapeutic rehabilitation for his sexual deviancy increases

the likelihood of recidivism to such an extent that it

becomes a very important factor for this Court now

undertaking a change in direction from the prior judge.

Given the changed circumstances upon resentencing, and

the facts found by the circuit court, we conclude that the law of

the case doctrine did not bar the imposition of consecutive

sentences. See Wong, 66 Haw. at 396, 665 P.2d at 162; Thompson,

2018 WL 4611273, at *6. However, for the reasons discussed in

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Section D below, it was error for the circuit court to impose the

new sentences without an accurate calculation of appropriate

credit for time served as set forth in Thompson.

B. Due Process and Trial by Jury

Because Preble's second and fourth points of error

assert violations of his constitutional rights to due process and

trial by jury, we consider these points together.

In his fourth point of error, Preble contends that the

"imposition of consecutive terms of imprisonment by a judge

without supporting jury findings of fact is a denial of his

rights to trial by jury and due process as guaranteed by Article

I, Section 5 and 14 of the Hawaii State Constitution." We reject

this argument for the reasons discussed in State v. Amaral, Nos.

CAAP-19-0000487, CAAP-19-0000488, and CAAP-19-0000489, 2020 WL

3397962, at *3 (Haw. App. June 19, 2020), and Thompson, 2018 WL

4611273, at *4-5. 

In brief, the United States Supreme Court in Oregon v.

Ice, 555 U.S. 160, 167-68 (2009), and the Hawai#i Supreme Court

in State v. Kahapea, 111 Hawai#i 267, 279-80, 141 P.3d 440,

452-53 (2006), have held that Apprendi does not apply to the

determination of consecutive sentences. "As noted in Kahapea,

Apprendi does not apply to a sentencing judge's fact finding to

impose consecutive sentences under [HRS] § 706-668.5 (1993),

which entails consideration of the factors set forth in HRS §

706-606 (1993)." Amaral, 2020 WL 3397962, at *3. "Although

consecutive sentences may lengthen the term of incarceration

beyond the statutory maximum for an individual sentence, none of

the individual terms of imprisonment exceed the applicable

statutory maximum." Id. In Kahapea, where the defendant was

convicted of five first-degree thefts and sentenced to ten years

for each, the Hawai#i Supreme Court explained that the sentence

of "five ten-year terms running consecutively is the statutory

maximum[,]" and did not deprive the defendant of his rights under

Apprendi. Id. at 280, 141 P.3d at 453.

Here, as in Kahapea, Preble's consecutive sentences

resulted in a term of imprisonment beyond the twenty-year

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statutory maximum for one count of sexual assault in the first

degree. See HRS § 706-659 (1993). However, none of Preble's

individual prison terms exceeded the statutory maximum for the

offense involved. Thus, the circuit court's imposition of

consecutive prison terms did not deprive Preble of his

constitutional right to a trial by jury.

In his second point of error, Preble contends that

"reconsideration of the issue of consecutive terms by [the

circuit court] was a violation of Preble's right to due process

and trial by jury." (Capitalization altered.) Preble argues

that the issue of whether to impose consecutive or concurrent

terms was decided by the original sentencing judge over twenty

years ago, resulting in a judgment that was appealed and

affirmed, such that the circuit court could not reconsider the

imposition of concurrent sentences. 

Preble's constitutional challenge to the court's

"reconsideration" of consecutive terms suffers from the same

defects as his law-of-the-case argument. Most notably, the

original sentencing judge declined to impose consecutive terms

based on the premise that extended-term sentencing was legal and

available without jury findings, i.e., circumstances that changed

with the issuance of the 2018 SDO. Moreover, on direct appeal of

the 2001 amended judgment, this court did not rule on whether

concurrent or consecutive sentencing was appropriate. Similarly,

in the 2018 SDO, the supreme court did not rule on the issue of

consecutive sentencing. On remand and resentencing, the circuit

court made detailed findings supporting its decision to impose

consecutive sentences. Preble cites no authority supporting his

argument that the court's consideration of consecutive terms

under these circumstances violates a defendant's rights to due

process and trial by jury. 

Instead, Preble relies on what he characterizes as

"dicta" in State v. Hussein, 122 Hawai#i 495, 509, 229 P.3d 313,

327 (2010), supporting his argument that consecutive-term

sentencing "may be a ruse to avoid the more burdensome procedure

of imposing extended terms and thereby violate a defendant's

right to due process[.]" Preble cites a portion of Hussein that

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relies in turn on a discussion in the concurring opinion in

Kahapea, 111 Hawai#i at 285, 141 P.3d at 458. See Hussein, 112

Hawai#i at 508, 229 P.3d at 326. However, the prevailing law

under Ice and Kapahea is that Apprendi does not apply to a trial

court's determination of consecutive sentencing.10/ See supra.

Accordingly, we conclude that the circuit court's

imposition of consecutive prison terms did not violate Preble's

constitutional rights to due process and trial by jury. However,

for the reasons discussed in Section D below, it was error for

the circuit court to impose the new sentences without an accurate

calculation of appropriate credit for time served as set forth in

Thompson.

C. Waiver

Preble contends that because the State did not raise

the issue of consecutive prison terms at Preble's original

sentencing, "the State waived the issue of consecutive

sentences." (Capitalization altered.) Neither Preble nor the

State cites to any case law supporting their respective

contentions regarding waiver. However, the State argues that

"[b]ecause the facts on remand were significantly different from

when Preble was originally sentenced, the State has never waived

or forfeited any right to ask for consecutive sentencing in this

case." 

Initially, we note that this is not a situation in

which the State waived an issue on appeal because it failed to

raise the issue in the trial court, and the trial court did not

consider or rule on the issue. Here, the original sentencing

judge appears to have considered imposing consecutive terms in

response to Preble's argument during his original sentencing

hearing. Moreover, upon remand pursuant to the 2018 SDO, the

State raised the issue of consecutive-term sentencing with the

10/ Furthermore, in Hussein, the supreme court held that "henceforth,

the circuit court must state its reasons for imposing a consecutive as opposed

to a concurrent sentence under HRS § 706–668.5 (Supp. 2008) or HRS §

706–606.5[.]" 122 Hawai#i at 498, 229 P.3d at 316 (footnote omitted). This

is precisely what the circuit court did here in imposing consecutive terms

upon resentencing.

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circuit court, which considered the arguments of each side in

determining Preble's new sentence, as reflected in the FOFs/COLs. 

Thus, Preble's argument is that the State was precluded from

raising the issue of consecutive-term sentencing in the circuit

court on remand because the State did not raise the issue in

Preble's original sentencing proceeding. In other words,

Preble's position is that in order to preserve the issue of

consecutive-term sentencing, the State, at the time of Preble's

original sentencing, had to request consecutive terms either in

lieu of extended terms, or in addition to extended terms,

potentially resulting in consecutive life terms.

We have found no authority requiring the State to make

such a choice in these circumstances in order to preserve the

issue of consecutive-term sentencing. It appears that at the

time of Preble's original sentencing, the State and the court

assumed that extended-term sentencing was available without jury

findings, such that the State could reasonably have considered a

request for consecutive prison terms as unnecessary. On this

record, where the parties and the circuit court faced

significantly changed circumstances related to sentencing upon

remand, we cannot conclude that the State's decision not to

request consecutive prison terms at the time of Preble's original

sentencing constituted a waiver of the issue.

D. Credit for Time Served

In his reply brief, Preble argues for the first time,

in the alternative, that if this court does not vacate the Third

Amended Judgment and remand the case for entry of a new judgment

imposing concurrent terms of imprisonment, the court should

remand the case for a "recalculation of credit for time served

pursuant to the Supreme Court['s] decision in Thompson[, 2020 WL

2846618, at *2]."11/

An argument not raised in the opening brief cannot be

raised for the first time in a reply brief, and such argument is

11/ The supreme court issued its Summary Disposition Order in Thompson

after Preble filed his opening brief in this appeal.

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ordinarily deemed waived. See State v. Mark, 123 Hawai#i 205,

230, 231 P.3d 478, 503 (2010) (citing In re Hawaiian Flour Mills,

Inc., 76 Hawai#i 1, 14 n.5, 868 P.2d 419, 432 n.5 (1994)); HRAP

Rule 28(d) (providing that "[t]he reply brief shall be confined

to matters presented in the answering brief"). This waiver is

not absolute and is subject to the court's inherent authority to

address plain error and without prejudice to an HRPP Rule 40

petition for post-conviction relief in appropriate circumstances. 

See Mark, 123 Hawai#i at 230, 231 P.3d at 503 (noting that

appellate courts may address plain error raised in a reply

brief); Briones v. State, 74 Haw. 442, 459-60, 848 P.2d 966, 975

(1993) (explaining that issues of ineffective assistance of both

trial and appellate counsel may be raised in a HRPP Rule 40

petition for post-conviction relief, in certain situations). 

Accordingly, this court allowed the parties each to file a

supplemental brief addressing the import of the Thompson decision

to this appeal, which both parties did. See supra note 2.

In Thompson, the Hawai#i Supreme Court ruled in part:

When the defendant has accrued time served against multiple

crimes, the wording of HRS § 706-671(2)12/ suggests that on

resentencing for those same crimes, the defendant is

entitled to credit against each of those same crimes, rather

than only once against the aggregate of the consecutive

sentences.

2020 WL 2846618 at *2 (footnote added). In Thompson, the

defendant was sentenced in 2001 to concurrent terms of

imprisonment. Id. at *1. Upon resentencing in 2017, the circuit

court imposed a consecutive sentence comprising four elements: 

three twenty-year terms and a single one-year term to be served

consecutively, for a total sentence of sixty-one years

imprisonment. Id. "The circuit court indicated that [the

defendant's] credit for time served under his 2001 sentence would

be applied only once against the first of his three consecutive

twenty-year terms," rather than to each of the offenses

12/ Under HRS § 706-671(2), "[w]hen a judgment of conviction or a

sentence is vacated and a new sentence is thereafter imposed upon the

defendant for the same crime, the period of detention and imprisonment

theretofore served shall be deducted from the minimum and maximum terms of the

new sentence."

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comprising his 2017 resentence. Id. The supreme court ruled

that "[a]bsent credit for time already served on each count of

his 2001 sentence, [the defendant] would be subjected to

unconstitutional 'multiple punishments' for the same offense." 

Id. at *3 (quoting State v. Taparra, 82 Hawai#i 83, 89, 919 P.2d

995, 1001 (App. 1996)). The supreme court thus vacated this

court's judgment, which had affirmed the circuit court, and

remanded the case to the circuit court "for an accurate

calculation of [the defendant's] credit for time served." Id. at

*4. 

Here, upon resentencing in 2019, the circuit court did

not indicate Preble's credit for time served under his original

2001 sentence, instead concluding that "[c]redit for time served

shall be determined by the Department of Public Safety [DPS]." 

Acknowledging this aspect of the resentencing, the State asserts

in its supplemental brief:

It is not clear from the record exactly how much credit for

time served is due to Preble and how the Department of

Public Safety is applying that credit for time served. The

State would merely suggest that this is an issue that is

more appropriately decided at the trial court level where

the record can be supplemented if necessary. If Preble

believes that credit for time served is not being applied as

the Hawai#i Supreme Court explained in [Thompson,] then

Preble should be free to raise that before the trial court

on remand. However, the State respectfully requests this

court to affirm Preble's consecutive sentences.

Preble, on the other hand, contends in his supplemental

brief:

[A]t the time of resentencing, September 24, 2019, Preble

had completely served his maximum terms of imprisonment for

all of his Class C felonies and had served either 19 years 6

months and 22 days or 19 years 9 months and 13 days,

depending on whether or not he is given credit for the

period between July 27, 2001 and October 16, 2001 on each of

his three Class A felonies. Thus, Preble had not less than

5 months and 8 days remaining to be served on his Class A

felonies.

. . . .

. . . [A]ssuming [the Class A felonies] were all to be

served consecutively with each other, Preble served his

maximum terms of imprisonment on all Class A felonies not

later than August 17, 2020.

(Capitalization altered.)

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The record does not contain all of the facts supporting

Preble's calculations of credit for time served. In addition,

neither Preble nor the State cites any part of the record

reflecting DPS's determination of Preble's credit for time

served. Having reviewed the record, we cannot discern precisely

how much time Preble has served on his original sentence. But

this much is clear from the record: Preble's original 2001

sentence included concurrent five-year terms, extended to

concurrent ten-year terms, for each of the eight Class C felony

convictions, and concurrent twenty-year terms, extended to

concurrent life terms, for each of the three Class A felony

convictions. Those concurrent terms were to be served

consecutively to the 10–year term (with credit for time served)

that was imposed in 1994 for Preble's second-degree robbery

conviction. See supra note 6. Given the passage of time, it

appears that Preble had been imprisoned in the current case for a

substantial number of years when he was resentenced in 2019. 

Under Thompson, Preble must be given credit for time served on

each count of his 2001 sentence, including counts he had fully

served. See 2020 WL 2846618 at *3; see also State v. Johnson, 68

Haw. 292, 297, 711 P.2d 1295, 1299 (1985) ("Without express

legislative authority, the court cannot delegate the sentencing

function to another person or entity.")

Because under Thompson, the circuit court's error in

failing to calculate credit for time served affected Preble's

substantial rights, i.e., his constitutional guarantee against

multiple punishments for the same offense, we exercise our

discretion to review for plain error. See HRPP Rule 52(b); State

v. Ui, 142 Hawai#i 287, 298, 418 P.3d 628, 639 (2018). Applying

the supreme court's Thompson decision, we conclude that the

circuit court plainly erred. 

III. Conclusion

For the reasons discussed above, we vacate the Third

Amended Judgment of Conviction and Sentence, entered on

September 24, 2019, in the Circuit Court of the First Circuit,

solely as to the resentencing of Preble, and remand for further

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resentencing proceedings, including an accurate calculation of

Preble's credit for time served, consistent with this Memorandum

Opinion and Thompson.

DATED: Honolulu, Hawai#i, June 16, 2021.

On the briefs:

Nelson W.S. Goo

for Defendant-Appellant.

Brian R. Vincent,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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