No. SCWC-15-0000363, Tuesday, July 18, 2017, 10 a.m.

ROBERT FLUBACHER, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAI I, Respondent/Respondent-Appellee.

 The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:
      John Schum

Attorney for Respondent:
      Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/01/17.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant Robert Flubacher applied for writ of certiorari from the Intermediate Court of Appeals’ (ICA) October 13, 2016 judgment, which affirmed the circuit court’s Findings of Fact (FOF), Conclusions of Law (COL), and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody Without a Hearing (Order Denying Petition).

Flubacher was charged with various offenses in several cases, and he pled guilty to all counts in each case. The State filed a motion for extended term of imprisonment. The circuit court granted the State’s motion and sentenced Flubacher accordingly. Flubacher did not appeal any of his convictions or sentences, and they became final in 2003.

The present appeal arises from Flubacher’s second petition for post-conviction relief. In his petition, Flubacher argues that: (1) the judge, not a jury, found a relevant fact used to enhance his sentence, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) the judge considered false facts in his sentencing decision and demonstrated bias against Flubacher.

Flubacher appealed the circuit court’s denial of his petition, and the ICA affirmed the circuit court’s FOF, COL, and Order Denying Petition.

Flubacher’s application for writ of certiorari presents the following issues, whether:

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)[.]