Marks v. State

── Marks v. State ── Court: Hawaii Intermediate Court of Appeals Date: April 23, 2026 Category: General NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 23-APR-2026 08:00 AM Dkt. 126 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I DONALD B. MARKS, Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPN-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Hiraoka, JJ.) Donald B. Marks, representing himself, appeals from the Findings of Fact, Conclusions of Law and Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody entered by the Circuit Court of the First Circuit.1 We affirm in part, vacate in part, and remand for further proceedings. Marks was indicted for second degree murder in 2002. On May 19, 2004, he pleaded no contest. The State moved for an extended term of imprisonment. The trial court granted the motion and, on November 8, 2004, sentenced Marks to life in prison without possibility of parole. Marks did not appeal his conviction or sentence. Marks v. State, No. CAAP–11–0000034, 2012 WL 1509235, at *1 (Haw. App. April 30, 2012) (SDO) (Marks I), cert. rejected, No. SCWC-XX-XXXXXXX, 2012 WL 3129027 (Haw. Aug. 1, 2012). 1 The Honorable Trish K. Morikawa presided.  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Marks filed his first Hawai#i Rules of Penal Procedure (HRPP) Rule 40 petition in 2005. The circuit court denied the petition. Marks appealed. We dismissed the appeal after Marks didn't file an opening brief. Marks I, 2012 WL 1509235, at *1. Marks filed a second HRPP Rule 40 petition in 2009. The circuit court denied the petition. Marks appealed. We affirmed. Marks I, 2012 WL 1509235, at *3. The supreme court rejected Marks's application for certiorari. In 2014 Marks moved to withdraw his no-contest plea, and for correction of illegal sentence. Marks v. State, SCAP-XX-XXXXXXX, 2018 WL 3153759, at *2 (Haw. June 28, 2018) (SDO) (Marks II). The circuit court treated both motions as non- conforming HRPP Rule 40 petitions; we will call them Marks's third HRPP Rule 40 petition. The court denied both motions. Marks appealed. The supreme court held that Marks's motion to withdraw no contest plea was raised and ruled on in a prior HRPP Rule 40 petition. Id. But the supreme court held that Marks's extended term sentence was imposed in an illegal manner because a judge, not a jury, had determined that the extended term sentence was necessary to protect the public, contrary to the holding in Flubacher v. State, 142 Hawai#i 109, 118-19, 414 P.3d 161, 170-71 (2018). Marks II, 2018 WL 3153759, at *3. The case was remanded to the trial court on that issue only. On remand, the trial court appointed Nelson Goo to represent Marks on October 25, 2019. On November 22, 2019, despite having counsel, Marks self-filed a First Supplement to Defendant's Motion to Withdraw No Contest Plea. Marks and Goo both signed a Notice of Withdrawal of Motions to Withdraw No Contest Plea and for an Order Prohibiting Enhanced/Extended Term of Imprisonment, filed on February 19, 2020. The trial court entered a Judgment of Conviction and Sentence on February 19, 2020. Marks was sentenced to life with possibility of parole, with credit for time served. 2