December 11, 2007 (No. 27523)
OPINION OF THE COURT BY NAKAMURA, J.
This case arises out of an altercation between Defendant-Appellant Mickey A. Maddox (Maddox) and Dale Mota (Mota). Mota was the new boyfriend of Maddox's ex-girlfriend Jane Barton (Barton). Maddox arrived unexpectedly at the residence shared by Barton and Mota late one evening, and a fight ensued between Maddox and Mota. During the fight, Maddox stabbed Mota in the chest with the knife blade of a utility tool. The knife blade penetrated very close to Mota's heart, but missed the heart as well as other important organs and vessels. Maddox and Mota accused each other of being the initial aggressor and Maddox claimed self-defense.
Maddox was indicted on charges of first degree assault and first degree burglary. After a jury trial, Maddox was found guilty as charged of first degree assault and guilty of the included offense of second degree criminal trespass. Prior to sentencing, Plaintiff-Appellee State of Hawai'i (the State) file a motion for an extended term of imprisonment on the first degree assault charge, asserting that Maddox qualified as a persistent offender under Hawaii Revised Statutes (HRS) § 706-662(1) (Supp. 2003), because he had two or more prior convictions for felonies committed at different times while he was an adult, and as a multiple offender under HRS § 706-662(4) (Supp. 2003), because he was being sentenced while already under sentence of imprisonment for a felony. The State also moved for a mandatory minimum period of imprisonment pursuant to HRS § 706-606.5 (Supp. 1999) based on Maddox's status as a repeat offender.
The Circuit Court of the Second Circuit (circuit court) granted the State's motions and sentenced Maddox to an extended term of twenty years of imprisonment and a mandatory minimum of three years and four months on the first degree assault conviction.
. . . .
We hold that there was insufficient evidence to prove that Mota's injury created a substantial risk of death and therefore vacate Maddox's conviction for first degree assault. Because, however, there was ample evidence to prove that Maddox committed the lesser included offense of second degree assault, we remand the case with instructions that the circuit court enter a judgment of conviction on the lesser included offense. We further hold that the circuit court erred in imposing an extended term of imprisonment and ordering the payment of restitution. We remand the case for resentencing on the lesser included offense of second degree assault. [footnotes omitted]