Livingston v. State

── Livingston v. State ── Court: Hawaii Intermediate Court of Appeals Date: May 15, 2026 Category: General NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 15-MAY-2026 08:20 AM Dkt. 59 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI KYLE J. LIVINGSTON, Petitioner-Appellant, v. STATE OF HAWAIʻI, Respondent-Appellee. APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2PR171000006 (2PC980000181)) SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.) Petitioner-Appellant Kyle J. Livingston appeals from the November 25, 2024 "Findings of Fact, Conclusions of Law and Order" (Denial Order), dismissing without a hearing his amended petition for post-conviction relief under Rule 40 of the Hawaiʻi Rules of Penal Procedure (HRPP), entered by the Circuit Court of the Second Circuit (Rule 40 Court). 1 (Formatting altered.) On appeal, Livingston contends the Rule 40 Court erred by dismissing his claims regarding (1) extended term sentencing, 1 The Honorable Kirstin M. Hamman entered the Denial Order. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER (2) mandatory minimum or repeat offender sentencing, and (3) consecutive term sentencing. Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the issues raised and the arguments advanced, we resolve this appeal as discussed below and affirm. Twenty-eight years ago, in November 1998, the circuit court (Sentencing Court) held a hearing on Respondent-Appellee the State of Hawaiʻi's motions for extended term sentencing, a mandatory minimum, and consecutive sentencing. 2 At the start of the hearing, the State explained that it included as exhibits "originals of certified copies of the felony complaint filed on November 30, 1992 in case Number 970550, certified copy of registration, change of address, certified copy of his abstract judgment and certified copy of his guilty plea in the Superior Court" of California. Livingston objected based on hearsay and identification and requested an evidentiary hearing. An evidentiary hearing followed. The State offered the testimony of Jess Lopez, Livingston's parole agent from the State of California Department of Corrections. Livingston did not object to Lopez 2 The Honorable Artemio C. Baxa presided over the Sentencing Court. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER testifying or to any part of Lopez's testimony, and elected not to cross-examine Lopez. The State also offered into evidence the records from Livingston's California case as Exhibits S-1, S-2, S-3, and S-4. Livingston objected for "lack of foundation" but made no specific objection as to a problem with foundation. The Sentencing Court granted the State's motions and sentenced Livingston to a one-year term of imprisonment in Counts One, Two, and Three, and an extended term of imprisonment in Counts Five and Six, with all terms to run consecutively for a total of forty-three years. 3 The Sentencing Court also ordered a mandatory minimum of three years and four months without the possibility of parole in Counts Five and Six. Livingston appealed but did not challenge the admission of E