*1 Hawai'i, Plaintiff-Appellant, STATE of JESS, Defendant-Appellee.
Brian
No. 28483. Court Hawai'i.
March 2008. April 4,
As Corrected 2008. April 18,
Reconsideration Denied *5 (Doro- Bennett, General, Attorney
Mark J. thy Sellers, General, Lau, Solicitor Girard D. Solicitor, Deputy General, First and Kimber- ly, Guidry, Deputy, Tsumoto Solicitor Gener- al, briefs), on for amicus curiae State Hawai'i. Bettencourt, Honolulu,
David Glenn for the defendant-appellee, Brian Jess. Shimizu, Deputy Daniel Prosecuting H. At- torney, briefs, plaintiff-appel- on for lant State of Hawai'i. Murakami,
Tracy Deputy Prosecuting At- torney, briefs, on the for curiae Pros- amicus ecuting Attorney, County of Kaua'i. Minatoya, Deputy Prosecuting Richard K. Acob, Attorney, Benjamin for amicus curiae Attorney, County of Maui. corpus in the LEVINSON, DUFFY, petition a writ of habeas C.J., for
MOON,
Court
the District
NAKAYAMA,J., Concurring
States District
for
JJ.,
United
ACOBA, J.,
alleged
In
petition,
his
Jess
Dissenting Separately, and
Hawai'i.
that the circuit
Separately.
term sentence
Dissenting
the extended
circuit,
first
Victoria
Honorable
court
LEVINSON,
J.
Opinion
Court
imposed upon him on
presiding,
S
. Marks
2001,2
pursuant
May
Hawai'i Revised
defendant-appellee
On
October
(HRS)
(1996)1
(Supp.1999),3
§§
§
Statutes
a 28
Brian Jess filed
U.S.C.
felony.—indeterminate life
provides
part
For a class A
§
in relevant
1.
U.S.C.
imprisonment;
shall
an
"a district court
entertain
term of
(3)
corpus
person
of a
writ
in behalf
felony—indeterminate
of habeas
B
For a class
custody
judgment of
pursuant
a State
imprisonment;
twenty-year
term of
ground
custody only
he is in
felony—indeterminate ten-
For a class C
or laws
treaties
violation of the Constitution
year
imprisonment.
term of
the United States.”
exercising
to im-
discretion on whether
In
imprisonment
pose
term
or to
the extended
imposed in Criminal No. 00-
2.
sentence
sentencing options, the court
use other available
01-0422.
term is nec-
shall consider whether the extended
public
essary
protection
provided:
HRS 706-661
necessary
light
term is
designated
whether
extended
[HRS ]706-662
In the cases
4],
§ ]706~
person
[HRS
who
been
the other
set
note
has
[see
forth
of
606.
factors
infra
felony may
be sentenced to
convicted of a
imprisonment.
sentence,
indeterminate term
ordering
When
an extended term
sentence,
ordering
the court shall
When
such a
length
impose
court shall
the maximum
imprisonment
impose
length
maximum
added.)
(Emphasis
Effec-
imprisonment....
be as follows:
shall
30, 2007, tire amended version of
*6
tive June
(1)
degree—life
murder
the second
For
expired
Supp.2003
§
and
HRS
706-661
parole;
possibility
of
without
note,
version, supra
was reenacted. See
(2)
felony—indeterminate life
class A
For a
230, §
Act
at 1025.
Haw. Sess. L.
imprisonment;
term of
31, 2007,
legisla-
Finally,
October
effective
(3)
felony—indeterminate
B
twen-
a class
For
part
§
HRS
706-661 as
of its
ture amended
imprisonment;
ty-year
and
term of
reform of
state’s
term
(4)
felony—indeterminate ten-
a class C
For
bring
compliance
into
with the
laws to
them
year
imprisonment.
term of
Apprendi
progeny.
requirements of
and
HRS
length
imprisonment
of
for
minimum
The
§
to read:
706-661
amended
2, 3,
and shall be determined
sections
imprisonment.
of
The court
Extended terms
authority
paroling
in accordance
Hawai[']i
person
may
who
the crite-
sentence a
satisfies
§ ]706-669.
with [HRS
any
categories
[HRS
of
forth in
ria for
set
legislature
amended
Effective June
4,]
]706-662[,
-662,
§
to an extended term
note
§§
and
see 2006 Haw. Sess.
HRS
706-661
infra
1012-13, 1025,
23, 24,
imprisonment,
§§
the maxi-
Act
54 at
which shall have
L.
and
of
length
the Hawai'i Judi
concerns raised
to address
mum
as follows:
sen
(1)
that Hawaii's extended term
degree—life
cial Council
For
in the second
murder
challenges
tencing
faced
federal court
scheme
parole;
possibility of
without the
trial,
right
to a
that it
a defendant's
violated
(2)
felony—indeterminate
A
life
For
class
protected
amendment
to the
under
sixth
imprisonment;
term of
Constitution,
Ap
articulated in
United
as
States
(3)
felony—indeterminate
For a
B
class
Jersey,
prendi
New
530 U.S.
v.
imprisonment;
twenty-year
of
term
(2000),
progeny.
and its
New [hereinafter, (2000), (2007), “Maugaotega progeny, viola and its P.3d 562 L.Ed.2d jury provided right to a trial as Maugaotega tion of his II and the upon Based II”]. United States amendment to the the sixth ques- analysis infra, answer the reserved Peyton, No. Civ. See Jess v. Constitution. tion follows: as 04-00601JMS/BMK, 2006 WL complaint filed Although the two-count 2006) (Jess II). (D. April On *1-*2 Haw. against March prosecution States District April the United defendant-appellee Brian Jess did not concluding that petition, granted Jess’s Court charge “aggravated crimes” described i.e., court, finding made the circuit Cunningham § in HRS see necessary term that an extended was California, 549 U.S. [hereinafter, “the protection public of the (2007), 864[, circuit 166 L.Ed.2d 856] necessity finding”], his sixth amend violated authority impose court nevertheless has by jury articulated in right to a trial as ment imprisonment upon Jess extended terms of court or Apprendi Id. at *4. The district § provisions of HRS 706- pursuant to the to resentence Jess dered the circuit court require our decision to consistent that conclusion. a manner with aggravating facts in question allegation extrinsic The reserved before Id. at *6. order, stems, ultimately, prospective applies from that instrument Furthermore, only. the cir ly reads as follows: insofar as judicial possesses inherent court, cuit court May part as of a the trial authority provide process none proceeding brought pursuant to Section “to where 706-662(1) (4), H.R.S., Moriwake, empanel exists,” & 65 Haw. finding to wheth (1982), make a factual determine legis beyond proven has er the lature, by amending Hawaii’s com doubt that the defendant’s to include fact- term laws reasonable term of incarcer mitment for an extended finding, clearly expressed approval has necessary protection for the ation is required jury system making of a public? bring findings in order to the extended compliance into sentencing procedures question by the reserved The issue raised circuit court part in our recent decision was addressed Cunningham>6 imprisonment ground under of an extended term of term unless the therefor an extended beyond hearing proven § after the have been [HRS ]706-662 been established at a has doubt, may impose notice the defendant and written conviction of the court reasonable ground proposed given provid- to the defen- imprisonment term of indeterminate (2). Subject [, pursuant to subsection supra dant 3]. note [HRS ed in 1706—661 ]706-604, provisions the defendant [HRS Leg., Spec. Sess. H.B. 24th Second right to hear and controvert shall have the http://capitol.hawaii.gov/splsession available at 2007b/bills/HB2_.htm *8 against offer the defendant and to (enacted evidence I as Act on Octo- provid- upon jury; before a evidence issue 31, 2007), http://capitol.hawaii.gov/sitel/ ber see right may to a that the defendant waive the ed archives/2007b/getstatus2.asp?billno=HB2. subsection, jury under this determination by shall be made which case the determination 3-5, supra October noted in notes effective 6. As the court. 31, 2007, Special Act of the 2007 Second (2) extended of intention to seek an Notice extended term sen- amended Hawaii's Session imprisonment § [HRS ]706- under term of fact-finding tencing provide jury laws to 4,] 662[, supra given to the note shall be see imposition of extended term sentences. the measure, days thirty within of the defendant's defendant arraignment. moreover, important provided state- However, thirty-day period provisions legislative for the of intent and ments defendant, modified waived be application of the new retroactive upon parties, a stipulation or extended of laws: good prosecutor. showing A of cause purpose Act is to 1. The of this SECTION previously sentenced to an extended defendant sentencing law extended term amend Hawaii’s chapter prior shall under a version of this term raised in recent federal court to address issues notice of an inten- deemed to have received right jury rulings opinions on the to a trial. and imprisonment. extended term of tion to seek an Jersey, opinions, Apprendi New (3) These jury, if the defendant If the or the court 466[, determination, 435] 147 L.Ed.2d right jury U.S. 120 S.Ct. waived the to a has 296[, (2000), Blakely Washington, imposition necessary the facts for the finds that if, pursuant JESS, act within its discretion to committing while in the course of a 706-662(1) 706-662(4) §§ HRS (Supp. dangerous and theft and while armed with a 1996), instrument, wit, knife, it empaneled jury a to make a factu a did threaten the Tran, al finding prosecution against imminent use of as whether force Canh proved beyond person present has a a who intent reasonable doubt that with acquiescence taking a compel defendant’s commitment for an of or imprisonment escaping thereby term or of property, terms with the com neces sary protection public. mitting Robbery for the of Fi offense of in the First nally, in of light plain language Degree, violation of of Act Section 708- 840(1)(b)(ii) supra *9 reasonable doubt. A defendant of im- Act. prisonment whose extended term shall is set aside invalidated purpose request pursuant upon of this Act is to amend Hawaii's to this Act resentenced prosecutor.... extended term statutes to ensure procedures impose used to extended comply upon imprisonment terms of quirements with the re- SECTION 8. This Act shall take effect approval. set forth the United States Su- H.B.2, supreme preme Leg., Spec. Hawai[']i Court and court. The 24th Second Sess. legislature ap- http://capitol.hawaii.gov/splsession intends that these amendments available 2007b/bills/HB2_.htm (enacted ply any requires resentencing that 1 on Octo- case be- as Act 31, 2007), Blakely, Apprendi, http://capitol.hawaii.gov/sitel/ cause of the decisions the ber Booker, Cunningham, archives/2007b/getstatus2.asp?billno=HB2. (Some Maugaotega and omitted.) applies the cases.... To extent that this Act internal citations (1993). term im- Jess to an extended of resentence
utively, pursuant to HRS 706-668.5
court,
prisonment
Honor-
Count I in a manner
May
circuit
on
consis-
On
presiding,
S.
entered a
order
the United
Victoria Marks
tent
of
States
able
with
by empaneling jury
of conviction and sentenced Jess
a
judgment
Court
make
District
imprisonment with a
term of life
necessity findings required
an extended
HRS
mandatory
year
706-662(1)
706-662(4)(a).
term of one
and
minimum
§§
In
and
the dec-
as Count I and an extended
eight months
support
of counsel submitted
laration
mandatory
years
minimum
ten
a
term of
imprison-
for an
term of
motion
extended
year
eight
one
months as
term of
convictions,
ment,
reciting
prior
after
Jess’s
II,
run concur-
Count
two sentences
counsel averred:
rently.7
“persistent
is a
offender” and
30.
[Jess]
9, 2001,
a
July
Jess filed motion
On
“multiple
a
offender” whose commitment
sentence,
the circuit
reconsideration
necessary
for an extended term is
for the
July
on
2001.
had
denied
Jess
protection
the public
because of the
appeal
filed
notice of
to this
previously
a
following facts:
2001, and,
September
June
court on
probation
[anoth-
a.
was on
[Jess]
summary disposition
court filed a
he committed
er criminal
when
matter]
affirming
judgment
the circuit court’s
order
the instant offenses.
alia,
sentence, concluding, inter
has
b.
an extensive criminal
[Jess]
not un
extended term sentences were
Jess’s
history.
Apprendi (citing
v.
under
State
constitutional
criminality has
c.
continued
[Jess]’s
Kaua,
1, 12-13, 72
484-
P.3d
despite
his
the crimi-
contacts with
(2003)).
Jess,
No.
system.
justice
nal
motion was scheduled for November supplement Jess filed his brief on December 2006, but, 6, 2006, on prosecu- November 26, 2007, prosecution supplemen- filed its tion an filed motion alternative to reserve 31, 2007, tal brief on December and the consideration of jury-empanelment ques- attorney general filed an amicus brief De- tion to this court. Jess filed a memorandum 31, cember 2007. 26, opposition on December 2006. On February 21, 2007, comb, the circuit the Hon- II. STANDARDS OF REVIEW Virginia
orable presiding, Lea Crandall de- empaneling termined that pur- for the A. Empaneling JuryA pose making necessity finding raised question and, therefore, novel of law re- presented issue the reserved question, court, served the supra, see to this question—whether a may circuit court em pursuant Appellate Hawai'i Rules of Pro- panel puipose considering for the (HRAP) cedure prosecuting Rule 15.8 The requisite necessity finding—is question attorney County for the of Kaua'i filed an “ ‘Questions of law. of law are de reviewable 11, 2007, July amicus brief on and the attor- right/wrong novo under the standard of re ney general filed an Septem- amicus brief on FHP, Inc., 470, view.’ Roes v. 91 Hawai'i 18, ber 473, (quoting Fran Enters., Inc., 234, 236, cis v. Lee 89 Hawai'i April 26, 2007, On this court entered an (1999)). 971 P.2d accepting and, order question, the reserved 26, 2007, requested November this court supplemental briefing addressing the follow- B. Sufficiency Charge AOf ing question: an ‘“Whether indictment com [or light Cunningham California, [549 plaint] sets forth all the essential elements 270,] 856, 864[, 166 L.Ed.2d charged] question ... [a offense is a (2007), Merino, and State v. 856] 81 Ha law,’ novo, which we review under the de
wai'i
915 P.2d
Merino,
‘right/wrong,’
standard.”
...
significance,
any,
what is the
if
of the fact
81 Hawai'i
915 P.2d
...
[at]
[at] 686
that the March
complaint
fails to
Wells,
State v.
78 Hawai'i
Jess,
allege
committing
the offenses
(1995) (citations
omit
robbery
degree
in the first
and unautho
ted)).
vehicle,
propelled
rized control of a
was a
Cordeiro,
persistent
multiple offender such State v.
Hawai'i
and/or
(2002) (brackets
imposing upon
him an extended term P.3d
ellipsis
imprisonment,
pursuant
points
original).
to HRS
opinion
8. The dissent
applied
resentencing
asserts that this
“adviso-
Act can be
to Jess's
does
ry” to the extent that we construe Act
advisory opinion
not constitute an
on an abstract
supra
pertains
Dissenting
*11
charged in the indictment”
mum “must be
III. DISCUSSION
490, 120 S.Ct.
(citing Apprendi, 530 U.S. at
Not
Although
Prosecution Did
A.
The
Jones,
393
10,12
Estrada,
511 and
Apao,
sections
the
must
2.
intrinsic/ex-
allege all
of
essential elements
an offense in
trinsic distinction
charging
Israel,
instrument. See State v.
634,
625,
In
Apao,
State v.
59 Haw.
586
66, 73,
303,
890 P.2d
310
250,
(1978),
P.2d
257
this court
observed
(explaining
requirement
that “the
that an
process requires
“due
that an indictment con-
sufficiently
accusation must
allege all of the
tain
of
all
of
of-
essential elements
essential elements
charged
of
offense
charged.”14
grand jury
derived”
fense
this
from
clause and
Consistent with
re-
clause).13
process
quirement,
due
contrast
to the
we held that the “better
is to
rule
rule,
Jones,
federal indictment
allegations,
include
indictment
1215,
at 243 n.
this court has held
proved,
if
in application
result
of
that not all facts that increase the maximum
enhancing
a
penalty
statute
crime
penalty for a
pled
crime must be
in the
636,
committed.”
at
Id.
tence,”
60 Haw.
Cunningham,
3.
In the wake alleged
need not be
no
distinction is
intrinsic/extrinsic
jury,
to the
or submitted
indictment
longer viable.
Schroeder,
P.2d
at
at
see
Hawai'i
procedure
Sentencing
a.
wholly
“are
extrinsic
because such facts
the defen
specific
circumstances of
Everything changed three months later.
bearing
and therefore have no
dant’s offenses
observes,
II,
Maugaotega
pursu
As Jess
se,”
guilt per
id. at
issue
Supreme Court’s
ant to the United States
original).
(emphasis in
For ex
P.2d at 203
prior
judgment vacating our
mandate and
ample,
of HRS 706-662
the former version
Maugaotega,
decision in State
alia,
was to
provided, inter
I),
(Maugaotega
version
the offense.
in explicating
complaint charged
with which the
Jess in the
Apprendi rule,
the six-member Cunning
*14
present matter, are transformed into lesser
majority quoted
ham
approval
the ob
“aggravated
included offenses of
crimes” be
servation,
Harris,
expressed in
536 U.S. at
cause, in the
of
words
Penal
Hawai'i
(plurality opinion),
S.Ct. 2406
“
Code,
“simple”
always
offense will
be
‘Apprendi said that any
extending fact
by proof
“established
of the same or less
beyond
sentence
the maximum
defendant’s
required
than all the facts
to establish the
by
jury’s
authorized
verdict ivould have
commission of the
‘aggravated’]
[enhanced
been considered an
aggravated
element
anof
701-109(4)(a) (1993)
§
offense.” See HRS
crime—and thus the domain of
jury—by
(“A
15
may
defendant
convicted
an offense
Rights’
those who
the Bill
549
framed
charged
included in an offense
in the indict
—,
U.S. at
127 S.Ct.
(emphases
at 864
ment or the information. An offense is so
added);
Harris,
see also
536 U.S. at
included when ...
proof
is established
[i]t
(plurality
Maugaotega
Alexander,
applied to
prosecutions,
state
*16
577,
necessarily
at
it
during
follows
633,
1221,
I,
guaranteed
longer
no
selves
courts
distinction
fact that the federal
do
quently, the
intrinsic/extrinsic
Estrada,
it
qualify
Apao
intrin
any
between
rule of
recognize
distinction
applies
the federal
across the
enhancers under
rule now
and extrinsic
follows
sic
Cotton,
clause,
535 U.S. at
and extrinsic enhanc
both to intrinsic
grand
board
short,
(citing Apprendi
U.S.
it
clear that extrinsic
S.Ct.
ers.
is now
Jones,
2348)
enhancers,
(quoting
enhancers,
are “es
like intrinsic
1215));
n.
Cun
“aggravated”
at 243
S.Ct.
version
U.S.
elements” of
sential
cf.
— n. 14, 127
S.Ct.
U.S. at
ningham,
Apao,
59 Haw. at
of the offense. See
“highly
shaping
257;
persuasive”
Cunningham,
869 n.
—
I,
section
interpretation
article
our
n. 14
n.
at 864
Harada
Harris,
Constitution. See
the Hawaii
al
avoided,
elements if
duty
adopt
allegation
of such
require
are
our
questions
such
Doe,
latter,’”
96 Ha
a conviction
In the Interest
decides to seek
26 P.3d
waii
of that offense.
1904).
Jones,
Pur
attorney
short,
disagree
I,
all
5 and
to article
sections
suant
the constitu-
general that our decision calls
alleged in the.
an offense must be
elements of
706-662(2)
§
or HRPP Rule
tionality HRS
instrument,
prosecution’s
and the
charging
7(b)
question.
into
not cured or otherwise
failure to do so is
by
fact that
the accused was
excused
respect
charg-
holding with
5. Our
constructively
the cir
actually
aware
“aggravat-
alleging
ing instruments
might give rise to an omit
cumstances
strictly prospective,
ed crimes” is
Israel,
78 Hawai'i
ted element.
and,
apply
therefore, does not
(observing
require
at 310
Jess.
allege all of
that the instrument must
ment
“
the offense is not
elements of
the essential
attorney
argues that
general
The
actually
the accused
the fact that
satisfied
Appren
mandating that all
any decision
by the failure
not misled
knew them
intrin
di/Cunningham enhancers—whether
” (quoting
sufficiently allege all of them’
charging
alleged in all
sic or extrinsic—be
Tuua,
at 1184-
Haw.App.
seeking
prison
an
term
instruments
706-664(2)
85)).
pur
as
Interpreting HRS
amended,
pursuant to HRS
as
“aggra
charge an element of an
porting to
III.A.3.b,
be limited to
supra
should
section
notice
crime”
constructive
vated
prospective application.
purely
guaran
to run afoul of the
cause the statute
I,
tee,
question
prospective
in article
sections 5 and
embedded
charging
rule.
in the
instrument.
this court announces new
of actual notice
arises when
Ketchum,
§ 706-
n.
decline to read HRS
We therefore
See State v.
(“If
664(2)
charge
... a
attempting to
defendants
1022 n. 26
rule,’
notice.
a ‘new
then
judicial
constructive
decision announces
discretion,
may,
determine
in its
this court
attorney general maintains
Finally,
preclude
of fairness
retro
that the interests
that the elimination
intrinsic/extrinsic
rule.”);
application of the new
James
active
7(d),
render HRPP Rule
distinction would
Distilling
Georgia, 501 U.S.
Co. v.
B. Beam
contents
an indict
[of
entitled
“[n]ature
401
254,
gaotega
opinion,
268,
657,
(1971)).
II
see
ministration
”20
sions,
do not
7,
we
believe
standards,’
id.
18
intrinsic/ex-
of the new
cation
substantially impaired the
trinsic distinction
Santiago,
403
that such facts should not be included
accepting
guilty plea
dures in
defendant’s
seled
retroactively,
see
complaint,
apply
ap-
829.
declaration,
prosecution alleged
part:
relevant
rule that
an
Because
new
“persistent
30.
is a
offender”
[Jess]
today
prospective,
purely
it does
nounce
“multiple
a
whose commitment
offender”
Garcia,
96 Haw
apply in this case.
necessary
term is
for the
Therefore,
was the
law when Jess was
d.
has failed
benefit from
[Jess]
charged March
2000.
system.
justice
the criminal
e.
has demonstrated a total
[Jess]
challenges
complaint,
I of
Count
Jess
disregard
rights
for the
of others and a
robbery
charged
degree
him
first
which
with
poor
attitude toward
law.
as follows:
f.
pattern
has demonstrated a
[Jess]
day
February,
On
about the 23rd
criminality
indicates that he is
Honolulu,
County
City
in that
likely to be a recidivist
he cannot
Hawaii,
JESS,
BRIAN
State of
while
require-
conform his behavior
committing
the course of
a theft and while
ments of
law.
wit,
instrument,
dangerous
aimed with a
knife,
g.
quantity
threaten the
Due to the
and serious-
did
imminent use
Tran, person
past
against Canh
ness of
convictions and the
[Jess]’s
force
who was
offenses,
present
the instant
compel acquies
the intent to
seriousness of
with
threat
taking
escaping
poses
of or
a serious
to the com-
cence to the
with
[Jess]
thereby
munity
long term
property,
committing the offense
and his
incarceration
necessary
protection
Robbery
Degree,
First
for the
in the
viola
]708-840(1)(b)(ii)....
public.
tion of [HRS
finding
committing a theft
while
with the
court’s
the course of
Jess takes issue
circuit
instrument,
wit,
dangerous
that his "behavior has escalated as evidenced
armed
during
knife,
possession
to use
his
the
and threat
a knife
imminent
did threaten the
use of force
robbery.”
of the instant
Jess
State,
commission
against
Garringer
Canh Tran.” See
allegation
is an intrinsic
that was
asserts that this
required
"
pled
complaint.
prose-
The
to be
(explaining
charging instrument
‘must
not, however, rely
allegation in
on this
cution did
its
Furthermore,
read
in a common-sensical fashion
order
sentencing.
for extended
second motion
term
aggravating
the material
cir
ascertain whether
assuming
even
sufficiently alleged
cumstance has been
therein
possession
rely
did
to use
on Jess's
and threat
support
imposition
of enhanced sentenc
knife,
complaint,
read
we believe that
when
Schroeder,
ing'
76 Hawai'i at
fashion, sufficiently alleged
in a commonsensical
205)).
Jess,
fact,
"while in
asserted that
“
altered.)
(Formatting
allegations
explained
The Pearce Court
‘[d]ue
*23
“
(d)
requires
process of
paragraphs
through (g)
not
law
vindictive
were
‘en
”
against
having
ness
a
defendant
success
in’
underlying
meshed
elements of
fully
play
attacked his
conviction
first
must
degree
first
robbery
Jess’s
and unauthorized
part in
no
he
sentence
receives after a
convictions,
propelled
of a
control
vehicle
see
” Smith,
798,
new trial.’
B. The Patties’ remedy particularly adequate vides an Power And Ex Post Facto Inherent con- and is free from dangerous defendants Issues infirmities. stitutional prosecution 1. The weighs precedent asserts Jess also making assigning prerogative empaneling against argues that prosecution The finding jury. He notes proper necessity to a present be a jury in the matter would past has concluded power that this comí circuit courts inherent exercise necessity find facts—such as the deterring “extrinsic” has an interest state judge, sentencing ing—must be found legislature, by enacting the and the crime not, facts are scheme, jury, because extrinsic evinced its original extended term nature, part the elements of the by their public particularly from protect intent hence, alia, and, assigning their (Citing, charged inter offense dangerous individuals. jury to the would contaminate §§ 706- determination Commentary to HRS 706-661 and alia, 49, 57, jury’s proper (Citing, inter focus. 662; Alvey, v. 67 Haw. State 84-85, (1984).) White, 129 P.3d at concluding that It asserts that I, 1112-13; 706-662, Maugaotega 107 Hawai'i at may, under HRS the trier of fact 908; Kaua, judge 102 Hawai'i jury rather than the be a 484-485; Tafoya, 91 Hawai'i precedent in 72 P.3d at comports this court’s Tafo 19.) He 904 n. 275 n. ya, 91 Hawai'i at assign rewriting the statute to has, argues that past, concluded— that this court jury necessity finding to the could language of the statute despite plain evidentiary prob process and “create due fact-finding responsibility assigning only a considered the defendant that possesses the in lems for a circuit court court—that legislative statutory overhaul integrated trial in power to conduct a bifurcated herent con may anticipate and solve” and would to find opportunity order to afford legislative expressed intent imposition of an ex flict with necessary for the facts Janto, supra notes 3 and sentence, through Act citing tended term upon analysis of the Judicial Council and the grounded—analysis that (1999). Act 230 Indeed, urges, all. upon the solution at not touch it con did further in Peralto when court went to Conduct remand, (Citing RepoH the Committee the trial court upon cluded Pe Review the Hawai‘i Comprehensive jury to make extended empanel a new could (2005); Sess. 27l-27q 2006 Haw. proce nal Code at findings pursuant new 1012-13.) 230, passim Rather, L. Act post he ex argument measures. Jess’s facto urges, this court should exercise restraint meritless. legislature. and await action a. Application judicially-re- aof Finally, Jess asserts that this court cannot statute to a formed defendant judicial announce a reformation of the ex requirements constrained tended sentencing apply laws then process, grounded due in ex
judicial decision to
violating
his case without
post
concerns.
facto
rights
his
process
to due
protections
United States
Court
against
post
ex
measures.23 (Citing,
facto
has made it clear
pro
that the constitutional
alia,
I,
14;
§§
inter
Haw. Const. art.
5 and
against
post
hibition
ex
ap
measures
City Columbia,
Bouie v.
378 U.S.
facto
plies only
legislative
Rogers
enactments.
S.Ct.
(1964);
12 L.Ed.2d Hicks v.
Tennessee,
532 U.S.
Oklahoma,
(2001) (“As
L.Ed.2d 697
the text of
(1980);
409
Morehead,
protective
of a
rule in
abandonment
force
offended. See
at 1511—
F.2d
offenses”).
at the
(noting
time of his
States
United
Court
distinguished
precedent
Tenth Circuit
hand, procedural
On the other
judi-
allowable retroactive
where
i.a,
changes,
process by
those that
alter
cially-wrought
expanded
changes
rights
adjudicated
guilt
or sentence im
(citing
of criminal
defendants
Batson Ken-
posed,
modifying
degree
without
of crimi
tucky,
476 U.S.
106 S.Ct.
liability
length
nal
of the sentence
(1986))
judicial
L.Ed.2d 69
from
decision-
imposed,
implicate
process
do not
due
con
making
rights
that constricted the
of criminal
See, e.g.,
Youngblood,
cerns.
Collins v.
defendants, which,
applied
to be
retroactive-
U.S.
S.Ct.
were violated
a
retroactive
of
matter,
present
of
invocation
In
legislative reform of the state’s extended
power
provide process
a
“to
court’s inherent
by
instigated
Apprendi,
statutes
exists,” Moriwake,
none
where
never be
(“The
pro-
authority
right
jury
pre
to
trial
inherent
to reform the
to
Hankerson,
(construing
at 242
Peralto,
208;
N.W.2d
95 Hawai'i at
Collins, 497 U.S. at
Aragon
County
v. Wilkinson ex rel.
Mari
Dobbert,
287-88, 292-94,
432 U.S. at
copa,
(Ct.App.
Ariz.
change affecting
“make
that a
clear
2004);
State,
Galindez
So.2d
identity
procedur-
of the
fact[-]finder
(Fla.2007);
Schofield,
State v.
895 A.2d
al”).
(Me.2005));
II,
Maugaotega
see
also
(Acoba, J.,
Hawai'i at
411
power by
statutory
legislative
specific
of
of
executive
absence
remedies’ and
government,
only
of
“the
promote
branches
cheek
...
power
the “inherent
a fair
upon
judicial
Peat, Marwick,
[the
branch’s] exercise of process.” (Quoting
Mitchell
power is
[its] own sense
self-re-
Court,
Superior
Cal.App.3d 272,
v.
200
245
Butler,
1,
straint.” U.S.
297 U.S.
v.
78-
(1988)
alia,
873,
Cal.Rptr.
(citing,
883
inter
79[,
312,
56 S.Ct.
80 L.Ed.
477]
Moriwake,
55,
doval,
power,”
areas of “shared
Cal.Rptr.3d
‘[i]n
any
Legislature’s
doubt about the
intent with
respect
sentencing.
to extended term
The
Application
2.
Act 1 to
case
Jess’s
Legislature
plainly expressed
has
its desire
would not violate the constitutional
sentencing
for a
scheme in which extended
prohibition against
post
ex
facto
terms of imprisonment may continue to be
measures.
imposed.”).
light
legislation,
of the recent
invocation
authority
post
protections
of the court’s
Ex
are
inherent
facto
“
unduly
implicated unless,
notice,
instant matter would
they
‘not
bur
without
effect
substantially
den
change
interfere with the other
a substantive
in
the defendant’s
” Barland,
power.’
branch’s exercise of
operates
terests that
to his or her detriment.
Grady,
Cutsinger,
N.W.2d at 696 (quoting
348 See
when
committed”
New
Miller,
2348,147
(quoting
at
107 S.Ct.
530 U.S.
120 S.Ct.
L.Ed.2d 435
2446) (brackets
(2000),
in original)).
jurisprudence
and this court’s
do not
factors,
require
aggravating
that
as set forth
We therefore hold that the constitutional
§§
in HRS
706-661 and
need to be
prohibition against
post
ex
measures is
facto
pled
charging
satisfy
in a
to
instrument
due
by
plain language
not offended
process concerns.
Cutsinger,
new law. See
28. the dissent asserts that Act should decision because 8 U.S.C. “is Jess, respect applied construed or alty provision permits simply 419-20, 422-30, dissenting opinion judge impose higher sentence when the does 174-82 it not take issue unlawfully returning also has a record of alien process with the actual substance our due Almendarez-Torres, convictions.” post analysis. ex facto However, 1219. appeal I note that Fifth Circuit Court Appeals, the court affirmed the trial court's *33 of an Court, party had been convicted Supreme whether appeal to the On offense.”). that the Constitution hold “[T]o must set indictment “[a]n Court said be deemed an ‘ele requires that recidivism it of the crime each element forth mark an petitioner’s offense would ment’ 118 S.Ct. How- charges.” Id. longstanding tradi departure from a abrupt ever, an indict- pointed out that the Court ‘going to the treating recidivism as tion of forth factors relevant “need not set ment only.’ 118 S.Ct. punishment Id. at sentencing found only of an offender to the Graham, 224 charged Id. guilty crime.” “Within 583). Accordingly, Supreme Court S.Ct. said, limits,” ques- “the Supreme Court judgement Fifth Circuit’s when affirmed the normally a factors are which tion of which “constitutional rejected the defendant’s it Accordingly, the Congress.” Id. matter for be treated as claim that his recidivism must Congress issue as Court framed the whether 247-48, Id. at an element of his offense.” men- “the factor that the statute intended has not 1219. Almendarez-Torres 118 S.Ct. conviction, tions, felony prior aggravated Court, since been overruled separate crime? Or did help define a holding been clarified. but its has presence of an earlier conviction intend the factor, sentencing a factor that a sen- aas Supreme Court’s 2. The clarification of punish- tencing might use to increase Jones, Ap- Almendarez-Toms ment?” Id. prendi, Cunningham. particular in that case that Emphasizing States, later, year One Jones United statutory .subject matter is re the “relevant 227, 248, 119 S.Ct. cidivism[,]” 118 S.Ct. id. at (1999), Court clarified its L.Ed.2d 311 that “the sentenc Supreme Court observed Almendarez-Torres, holding in follows: a tradi ing factor at issue here-recidivism-is Term, ], decided last “[Almendarez-Torres traditional, tional, a basis for if not most every proposition that not fact stands for the increasing sentencing an offender’s court’s range stated in expanding penalty must be Id. at S.Ct. 1219. sentence.” indictment, holding being felony precise tradition, the Court Consistent with this increasing pen the maximum that recidivism allege ago that a State need not long regard, alty charged.” said In this need not be so prior history in the indict defendant’s conviction Almendarez-Torres “stressed factor, alleges the ele or information treating ment recidivism as a crime, underlying though perhaps exception, of an even one ments and noted “necessary bring clearly made con Congress the conviction was had never v. West element where the offense the statute.” Graham viction an offense ease within recidivism, conduct, 32 S.Ct. in the absence of was Virginia, 224 U.S. (1912). 585-86, independently unlawful.” Id. That conclu 56 L.Ed. said, followed, the Court from “the S.Ct. 1219.
sion
issue,”
fact
and the
distinct nature of
distinguished
from
then
Jones
The Court
“does not relate
that recidivism
by observing that
Almendarez-Toms
offense,
goes to the
but
commission
the Sixth Amend-
“concerned with
Jones was
only, and therefore
punishment
not alone the
right to
trial and
ment
subsequently
Id. at
32 S.Ct.
decided.”
claimed
rights to indictment and notice as
added).
(emphasis
at 588
Almendarez-Toms,
by”
the defendant
Almendarez-Torres,
243-44,
“rested in sub-
U.S. at
Almendarez-Toms
regarding
(ellipsis
part
the tradition of
(emphases
original)
stantial
S.Ct.
factor,
Graham,
not as
omitted);
32 recidivism as a
224 U.S. at
(“An
in the indictment.”
to be set out
is confined to the
element
S.Ct. 583
indictment
1215;
Jones,
U.S. at
com
question
an offense has been
whether
(“Because
S.Ct. 1215
simply
see id. at
question
mitted. Here the
(b)(2)
separate
constituted a
split among
held that subsection
the circuits inasmuch
noted a
Court
as seven other
accordingly
circuits likewise held
Schroeder,
P.2d
recognized
respectfully
I
dissent.
this
First,
proceeding
this
nothing
judicial
should be dismissed
expediency—Jess’
more than
and the ease remanded. The order of the
merely
case is
the vehicle which the ma-
(district court)
United States District Court
jority proclaims propositions it seeks to ad-
already
has
directed that
the court must
pertinent
applied
vance that are not
to or
comply
Apprendi
with
Jersey,
v. New
circumstances,
his situation. Under these
no
Fourth, adoption of instructed this court assuming arguendo light of its majority’s scheme necessary, rule is the new Cunningham. Maugaotega v. decision sentencing factors holding that extended Hawaii, at —, S.Ct. at 1210. document be included must applied to Jess inasmuch as unlike should be if this prosecution contended that The promulgate broad legislature, do not we Supreme that the Court’s court determined a matter specific outside of cases rules Cunningham requires “that ruling apply any fairness must of fundamental we finding make the trier of fact is to benefitting defendants to those who new rule im imposition of an extended term [sic] similarly are situated.2 necessary protection for the prisonment is that the court is authorized to public[,]”
I.
jury make that determination.
empanel that if this court
prosecution
concluded
A.
constitutionally
the trier of fact is
holds “that
pro
‘necessary
for the
required to make
Question,3
respect
to the Reserved
With
public’ finding[,]”
should
tection of the
amici curiae would an
court “has the inherent
also hold that
Question in the affirma
the Reserved
swer
that deter
power
empanel
to make
prosecution notes that on Febru
tive. The
sentencing proceeding
part
mination as
of a
ary
vacated this
Court
has
remand
a defendant’s sentence
where
Maugaotega,
judgment in State v.
court’s
procedural
Apprendi
due to an
been vacated
399,
extended Question concerns The Reserved same legislature, jury expressed intent of the Maugaoatega. applied statute that was to to empaneled on remand decide on should Question Consequently, in- Reserved findings necessary under a motion for § of HRS sentencing [Maugaote- volves the same version term unless extended jury Maugaotega held in II. right such unconstitutional Jess’ ga] [a] his waives pending during this court agreed the court.” Id. at case before waiver (footnote omitted). Maugaotega in pendency P.3d at 591 decision consequence 11.10 It follows as a of the C. proceedings, Maugaotega II en- foregoing Question. tirely dispositive on the Reserved Nevertheless, majority held in majority’s holding Based on Mau- manifestations, 706-662, in all of its “HRS gaotega sentencing II that extended Hawaii’s face[,]” Mau ... is unconstitutional its scheme in 706-662 was unconstitu- II, gaotega face, (2) majority’s per- (footnote omitted) tional on its (emphasis add at 576-77 ception supposed legislative in intent ed), applied not be and therefore could (a Maugaote- Act not Further, statute involved majority Maugaotega. declined II) ga empaneled that a not be judiciary’s could power inherent to exercise making requisite findings purpose empanel juries extended term fact find sentence, impose Re- “in extended ing because it claimed Act Question only can in the expressed regard intent ... served be answered legislature negative applies ease. our term to Jess’ best conform how and, regime doing, majority Maugaotega II established so did with- power question find the out under the statute not vest involved but, rather, Question, aggravating di the circuit court requisite facts Reserved empanel a'jury to make the “neces- re could rected should sary protection public” responsibility[,]” id. for the find- tain that Hence, ing.11 holding (citing 2006 Haw. L. Act same Mau- P.3d Sess. Peralto, 319-20), (Ariz.App.2004); Ariz. *39 685-86; power Schofield, Smylie, inherent to order N.E.2d at v. "this court exercised its 823 State 927, (Me.2005); Chauvin, resentencing" jury empaneled pursuant on to v. 895 A.2d 935 State 20, (Minn.2006)). original jury § 706-567 because the had not been 24 N.W.2d 723 according Young, required instructed to prove and the unani to to applicable of to The version HRS 706-662 factor, mously requisite sentencing find the id. Maugaotega was an of amended version the stat- 5, Peralto, (citing 18 Hawai'i at P.3d at 207 95 However, applied to ute that Jess. amend- 236, (citing Young, Hawai'i at 93 999 only gender with of dealt the definition ment identity 241)). and thus irrelevant to issues was in both cases. raised jurisdic noted that other 9.The dissent further power chosen exercise the inherent tions had to argument. essentially 11. Jess advances the same juries empanel preserve to to of the courts posits we He legislative intent certain criminal defendants subject of stare to terms incarcera are bound doctrine decisis would be to extended 459-61, [Maugaotega (citing recent in [our] decision follow tion. Id. II], concluding County Maricopa, the answer to the Re- Aragon v. Wilkinson ex rel
423
must,
(citation omitted)).
II
in
gaotega
principle, apply to
in
29 P.3d at
Jess
925
Once
the instant case.
prece
decision of this
has become
dent, it establishes the “framework [in which
Maugaotega
prece
This is
II
subsequent
evaluated.”
cases] must be
Id.
adjudged
dent. “Precedent is
case or
‘[a]n
(arguing
Brantley
been
should have
de
court,
decision of a
furnishing
considered as
cided under the
“framework”
State v. Ju
example
authority
for an identical or
mila,
(1998)).
87 Hawai'i
not construe Act 1 in any the absence of questions presented decide not inus an controversy presented appellate pro- in this uphold effort to Act 1 regard without to the ceeding respect with to Act 1. parties The fact yet that the statute has to be raised in opportunity have had the to raise and controversy any case exempli- before us is arguments brief related to Act 1 because majority’s fied in the defense of the amended obviously there is no point reason at this 706-664(2). language in HRS In this case doing majority so. The has made its declara- Attorney correctly General himself ar- vacuum, tions without the benefit of gues holding majority’s such as the specific facts on ground which to holding. requiring aggravating all factors relevant to Therefore, majority only speculate can enhanced in- included general and, on challenges 706-664(2) what Jess other dictment would render HRS as application will file peals an petition for writ of certiorari. [s]upreme or a for certiorari in the filed, event such pending.” [c]ourt ICA's
judgment
stayed
will be further
until this court
majority
16. states that inasmuch as this dis-
accept
reject
application.
decides to
said
See
sent "asserts that Act 1 should not be construed
("The timely filing
applica-
HRAP Rule 41
of an
Jess,
applied
respect
it does not take
stays finality
tion for writ of certiorari
majority's]
issue with the actual substance of [the
judgment
appeal
[ICA's]
unless otherwise or-
process
post
analysis.” Majority
due
or ex
facto
court.”). Thus,
dered
appropriate
[this]
opinion
point
intention
seek
ques
grave and doubtful constitutional
which
onment[,]”
directly at odds with the new
is
such
arise and
the other of which
tions
majority
that “a
pronounced
rule
avoided,
duty
adopt
our
is
questions
[to]
are
instrument,
indictment,
an
charging
be it
399-400, 184
Id. at
P.3d at 151-
the latter.’
information,
all
complaint, or
must include
Doe,
(quoting In the Interest
96 Hawai'i
in
proved,
if
result
allegations, which
(2001)
73, 81,
(quoting Jones
enhancing the
application of a statute
States,
v. United
Majority
penalty
the crime committed.”
(2000))).
1904, 146L.Ed.2d 902
(citations
398,
order,
(1971))) (internal
majority expressly
quotation
states that
its
(first
omitted)
holding regarding
charging procedure
original),
new
marks
brackets
Majority
“constitutes a
rule.”
opinion
“holding
respect
new
charging
instru
(footnote omitted).
401,
22. This
one
complaint,
OVUII must be included in the
it held
through
supra
four and nine. See
prosecution's
charge [of
that “the
oral
a 'second
n. 2.
at 138
sufficiently alleged
offense’]
a violation of HRS
(a)(1)
(b)(1)”
§§ 291E-61
the de
majority misleadingly argues
23. The
that the dis-
charged.
fendant was
Id. at
previously
ag-
sent has not
raised the issue that
responded,
1163. The Kekuewa dissent
however
gravating
charg-
factors must be included in the
that the mere reference to a “second offense”
Majority opinion
document.
committed
the defendant “fail[ed] under HRS
P.3d at 152-53. The inclusion of the enhanced
designate
§ 291E-61 to
...
the essential element
factors in a
document is not
years
that the offense occurred within five
concept.
a new
conviction for [OVUII.]
Id. at
*47
J.,
(Acoba,
concurring
P.3d at 1172
and dissent
majority recently
It should be noted that the
(internal
marks, citations,
ing)
quotation
and
aggravating
increasing
reiterated that
factors
omitted).
brackets
punishments
charging
must be included in the
majority
The dissent also contended that the
Domingues,
document. See State v.
106 Hawai'i
providing
response" by
was
an "inconsistent
hold-
480, 487-88,
(2005) (reit
“
'prior
generally
that
convictions are
a
fact
Estrada,
erating the rule of State v.
69 Haw.
charged offense,'
circumstance extrinsic to the
but
(1987),
'aggravating
defendants who are
situated.”
542 U.S.
(2004)).
159 L.Ed.2d
933.
noteworthy
although
majority
It is
Indeed,
'‘new”
ma-
rule referred to
maintains
new rule announced in this
justifying
imposition
jority that facts
of an
I,
grounded
case is
5 and
article
sections
pled
extended term sentence
in-
must
Constitution, majority
of the Hawai'i
declares
previously
dictment
case,
announced
a federal
"patterned
the latter section is
after
federal
States,
namely
Jones United
counterpart!.!’ Majority opinion at
n.
range of constitutional violations
habeas!,]”
at -,
by
majority
support
id.
its decision to
on federal
the
do
redressable
to
this court is free
extend
in
make the new rule announced
this case
majority’s
application of the
before,
the retroactive
prospective.26 As noted
in
purely
to
charging
analogous
rule that
feder
is
new
question posed
the
was whether new
Garcia
to
cases are
precedents
al
defendants whose
applied
rules articulated in Wilson should
defen
direct
and those
pending on
review
Garcia,
retroactively
awaiting
was
who
term sen
dants like Jess whose extended
rules
trial at the time that
the new
were
been vacated and who await
tences have
In
the
explaining
established.
rationale be-
majority
the
resentencing at the time that
Garcia,
holding
hind its
in
this court ob-
opinion
this case.
issues
retroactivity
issue had been
served
(1) by
ways:
making
resolved
three
IX.
retroactive,
fully
“applying
decision
both to
underlying
parties
court and to all
principles
our
the
before the
others
keeping
by
against
claims
precedent,
the
rules
whom
new
own
case,
application
in this
defendants
the
and that retroactive
rule would
Unlike
the
by
majority
the
that related
retro
him.
cases cited
benefit
Third,
application
were
upon by
majority
of new rules
benefitted
active
by
the
cases relied
First,
in State
the outcome of those cases.
applied
where the new rule was not
to the defen-
210, 222,
Ikezawa,
dant,
Haw.
857 P.2d
598-
disposition
the case
nevertheless
(1993), upon
majority principally
See,
which the
Tachibana,
e.g.,
benefitted
defendant.
relies,
prejudice
considered
well as
... on the ad
the "effect
(announcing
requiring
defendant
ministration of
a new rule
courts to en-
justice
if
case”
in the instant
colloquy
gage defendant in an on-record
before
pertinent
applied retroactively.
new rule were
accepting guilty
granting
pleas but
Tachibana's
"effect ... on the ad
stated
Ikezawa
post-conviction
petition
ground
for
relief on the
justice”
grounded in
on
ministration
right
testify
by
that his
was violated
counsel’s
fairness!,]”
"concept
598,
857 P.2d
id. at
witness);
refusal to call Tachibana as a
Warner,
State v.
merely
procedural
question
and is not
492, 494-96,
58 Haw.
analysis
efficiency or convenience.
Ikezawa’s
(1977) (announcing
pro-
a new rule
961-62
justice”
factor indicates
the "administration
spective application regarding
when the
in-
against prejudice to
it must be
balanced
manslaughter
as a lesser
struction
included
id.
P.2d at
defendant. See
mandated,
reversing
offense was
but
defendant’s
(weighing the
on the old
defendant’s reliance
remanding
for a new
be-
conviction
trial
prejudice
him that would result
rule and
approach,
under the
cause
traditional
"there was
application against the
retroactive
"burden
from
giving
require
evidence
sufficient
of”
judicial
by prospective
[placed]
system”
on the
case);
Fortin,
State v.
instruction
defendant's
application). Additionally,
discussion
Ikezawa’s
(N.J.2004) (an-
178 N.J.
843 A.2d
equates
integrity
"the
of this factor
it with
nouncing
prospective application
new rule for
judicial process!,J”
P.2d at
id. at
requiring aggravating factors to be submitted to
omitted),
(citation
quotation
and internal
marks
grand jury
charged
in indictment
vacat-
but
turn
with avoidance
which is
commensurate
in.
remanding
defendant's conviction and
results,
inequitable
id. at
trial
defendant was
"his
new
denied
Here,
(footnote omitted).
the administra-
right to a fair
result of
trial” as a
too-limited voir
justice
factor
undermined
un-
tion
dire). Here,
prejudiced
substantially
Jess is
equal treatment
Jess.
visited on
majority's
apply
refusal to
its new rule retro-
Second,
majority,
in some
cited
cases
actively.
prospective application
the new rule
benefitted
Fourth,
upon
relied
other cases
the ma
retroactive
the defendant whereas
jority,
applied
new
See,
rule was not
the defen
prejudiced
e.g.,
have
defendant.
putative
dant because
violation of that rule
Ikezawa,
Haw. at
Haanio,
See, e.g.,
was harmless.
94 Haw
(remanding with
to dismiss
instructions
(2001) (it
ai'i
unnecessary
charges against the
with or
defendant
without
*50
apply
the
rule
this court
new
Stanley,
prejudice);
Haw.
mandating jury
(1979)
on included offenses
instruction
(prospective application of
P.2d 422
was
in the
where there
a rational basis
evidence
regarding timing
appeals
family
of
from
new rule
an
the defendant
waiving
for such
instruction to
jurisdiction benefitted the
court orders
give
the court did in fact
an included offense
accepted and re-
defendant because this court
trial). Plainly, expos
appeal although
appeal
instruction
defendant’s
did not
viewed his
he
despite
Jess to
extended sentence
family
jurisdiction
after
court's waiver of
until
he
convicted).
against
deficiency
complaint
prospective
supposed
him
It is manifest that
was
harmless error.
application
the new
not benefit
cannot
deemed
rule does
Jess
(2)
unanticipated,
and third Stovall
pressed[,]”
by maldng
purely
a decision
the second
prospective
applied
by
“a
rule is
law
au-
where
new
enforcement
favors—reliance
parties
law-making
deci-
on the old standards and
on
neither to the
thorities
effect
justice
against
byor
a retroac-
sion nor to those others
whom
the administration
ride-—virtually
might
applied
application
the new
to conduct or events
tive
(3)
decision[,]”
occurring
by
finding
nonretroactivity.”
compelled
before that
or
a
selectively prospective
making a decision
(quoting Griffith,
Id. at
“where [a review or pending all cases ... direct procedure criminal to be a clear rule of ques- time that the case invariably yet final” at the past, it almost break with (internal quotation decided. Id. newly princi- minted tion was on to find such a went omitted) (ellips- marks, emphasis citation ple “[a nonretroactive” ... because once However, Danforth, cjourt under original). found that rule was es new *51 retroactivity may by law, by the limits of be defined tablished federal as determined [the Court], by Supreme court are state not constrained and that it an was unrea- precedent. application clearly federal court sonable established fed- law, by
eral
as determined
F.Supp.2d
Court[.]” 350
at 856. The dis-
A.
trict court there held that this court’s earlier
If
compelling
ever there were
for
reasons
upholding
decision
of the ex-
right recognized
this court to
exercise
tended sentence to Kaua was based on a
retroactively apply
a new rule
Danforth
“reading Apprendi
face
[that] flies
restriction,
without federal
such reasons exist
language Apprendi especial-
of the actual
original
here. The court’s
extended term
ly
language
as that
has been construed in
by
sentence was vacated
district
Arizona,
Ring
584[,
Apprendi.
because the sentence violated
C. prevent compounding der further of error prevent yet and to another defendant from holdings by majority The reached to- being deprived rights. of constitutional day regarding are in Jess a sense not “new” they in grounded that are upon principles set X. by Apprendi
forth
progeny
and its
while
Hence,
Jess’ case was
on
still
direct review.
important principles support
Two
exten
majority’s holdings represent
a correc-
reiterate,
sion
the new rule to Jess. To
tion
prior holdings pursuant
to the rules
first
judicial
that “the nature of
review
in Apprendi
articulated
and related eases
precludes
simply fishing
from
us
one case
that were established
to this court’s
review,
from
appellate
the stream of
using it
affirmance of Jess’ conviction and
sentence
pronouncing
rules,
as
vehicle
new
and
permitting
then
a stream of similar’ cases
Furthermore,
procedural
subsequently
difficulties
flow
unaffected
that
Garcia,
engendered by
new
Ap-
rule.”
misconstruction of
(internal
prendi
marks,
quotation
delay
have not resulted in
undue
cita
tion,
omitted).
sentencing.
principle
resolution of Jess’
brackets
The habe-
precludes
corpus petition
“fishing”
as
that
was submitted
us from
for cases in
approxi-
mately
separa
nine
this manner rests in
months after the deadline for
the doctrine
appealing
powers.
expired.
repeating
tion
It bears
During
court’s SDO
period
legislature,
U[u]nlike
of time
like the
[and
between
issuance of
Su
Court,
case,
preme
promulgate
SDO
2003 and the instant
do
we]
new
issued,
procedure
stream
rules of
criminal
interpreted
of eases have
constitutional
on
Apprendi
judicial
broad
Ring
requiring
basis. Rather the nature of
aggrava-
all
ting
requires
adjudicate
review
charging
specific
factors to be included in
that we
cases,
rejecting
usually
and each
instrument
the differentiation
ease
becomes the
vehicle for
between extrinsic and intrinsic
announcement of a new rule.”
factors as a
(em
Griffith,
U.S.
excluding
basis for
extrinsic
“Apprendi L.Ed.2d 404 any extending concurring said that fact (“In truth, part dissenting part) beyond defendant’s sentence maximum disregard jury’s power authorized Court’s assertion of cur verdict have would adjudicating been rent law cases before us that aggravated considered an element of an States, already appel have not run the full course of crime” Harris v. United review, 545, 557-566, quite simply late assertion that opinion))). adju our constitutional function is not one of (plurality L.Ed.2d legislation”). dication but in effect of Thus, deny Jess the benefit of the inequitable rule in light principle ap- The second is that “selective in place plication the case law while Jess’ principle ease was of new rules violates appeal treating similarly direct and while case Jess’ was under situated defendants Indeed, arguments Griffith, habeas review. U.S. at same.” (citation omitted). appeal were advanced Jess on direct S.Ct. 708 noted Garcia *53 retroactively ap Failure to the of ferred above. grant that “cannot benefit the we in ply majority’s the rules this manner not to new rule to choose Wilson Wilson principles the identified in similarly would controvert situated defen apply it to other “using court be [Jess’ Garcia as this would application of such selective dants because pronouncing new as a vehicle for treating case] principles the of new rules violates [rules], permitting a of simi and then stream similarly defendants the same.” situated by subsequently Garcia, lar cases to flow unaffected P.3d at 933 96 Hawai'i at “violatfing] (citation rule” that new and would quotation marks omit and internal ted). said, principle treating similarly situated the the Court “after As U.S. Garcia, same.” defendants the Hawai'i have decided a new rule case (citation internal 29 P.3d at selected, judicial integrity the review re omitted) (second quotation marks brackets quires that to all similar apply that we rule original). Griffith, pending on direct review.” cases majori S.Ct. 708. The
479 U.S. at charging ty’s apply the new rules refusal XII. if egregious than Garcia to Jess is even more prosecution the argues applying The apply Wilson to the Garcia had refused poli- public have new rule would detrimental instance, majority In the defendant. this cy prosecution The effects. contends the of a rule announced denies Jess benefit “[a]ny application under such a retroactive in his own case. an
defendant has ever been sentenced [to who XI. imprisonment] argue extended term could that his her conviction void because a or was charg Retroactive new offense material or essential element the keeping ing requirements to Jess with [charging not included in the instru- principles the we have aforementioned State, (Quoting So.2d Poole v. ment].” case adopted. Even if Jess’ is deemed (emphasis (Ala.Crim.App.2002) add- review, charging the new rules on collateral (internal omitted) ed) quotation marks like apply to defendants Jess should those (brackets However, original).)27 supplied of such defendants insofar as sentences prosecution’s is incorrect. argument by the district court have been vacated charging application of the new Retroactive resentencing at pending their are cases rules, engendered following principles only opinion is issued because of time this Garcia, only those defendants allow pre misapplication Apprendi prior or, pending are on direct review whose cases “[njeither DanfoHh, Link- cepts. As held in Jess, subject those who like are resentenc- Teague implicitly or con explicitly letter nor ing case as of the date the decision this authority provide of States to strained rule. to benefit from new As range remedies for broader of constitution sentences, this involving eases enhanced on federal al violations than are redressable option court can afford the — -, Danforth, habeas.” proceeding on a non-extended term sentenc- S.Ct. at 1038. initiating basis such defendants liberty grant only is court at Not a new trial. retroactively applying the relief new Jess Brantley, majority rules announced charging “in but, apply ICA held that the court erred imperative that this it is mandatory mini Defendant to a retroactively to Jess order to com- rules with, imprisonment under [HRS] re- mum term port principles of Garcia twin argument bad act or over- prosecution’s [sic] introduction of inadmissible second asserts jury] "requiring prejudicial require [grand to in- ly instrument evidence to allegation imposition of an probable clude [a cause determina- to make such necessary protection term is argument germane to the tion].' This is not [grand] jury's public 'would contaminate apply question rule of whether the new should required factual circumstances sur- focus on the is not discussed here. Jess and therefore require potentially rounding the offense and 706-660.1(3)(a) (1993) Hathaway, of a use semi- also United States 318 F.3d (10th Cir.2003) automatic firearm in (ordering the commission of a felony, finding because there was no trial defendant’s criminal records be altered to actually constructively that Defendant reflect that he was convicted of misdemeanor possessed assault, such a firearm at the time of the felony in assault because “[t]he *54 explained murder.” The ICA that such a allege required dictment ... failed finding “aggravating constituted circum- felony essential element of the crime for stances intrinsic to the commission convicted”); which was [the defendant] cf. charged crime and therefore must be deter- Wilkes, F.Supp.2d v. United States mined the trier of (D.Mass.2001) fact.” Id. at (concluding that because (internal marks, quotation P.2d at 1375 cita- specify the indictment did not amount omitted) tion, (ellipsis origi- and brackets marijuana, “the indictment deficient [was] nal). Apprendi under such that defendant could subjected not be to an extended sentence Upon determining mandatory the. drugs). prose based on the amount If erroneously minimum sentence had been im sentence, cution seeks an extended Jess’ con posed upon the defendant the ICA followed viction should be vacated and he would be procedure adopted by supreme entitled to a new trial based on a State, Garringer v. specified period document filed within a opting to: alleging time the enhancement factors.28 judgment withhold on con- [Defendant’s] degree viction for thir- [second murder] XIII. ty days. prosecution within that If resentencing time consents to without a reasons, foregoing respect- For the I must mandatory minimum under HRS 706- fully disagree majority opinion. with the 660.1, we will the conviction on that affirm resentencing. count and remand If hand, government the other does not consent, we will vacate con- [Defendant’s] degree
viction on second murder [the
count]
remand
a new trial.
Brantley, 84
ment,” merely getting Allowing charges retry a defendant who has succeeded to refile " against compliance set States v. aside[.]' with the new rule his first conviction United Jess DiFrancesco, majority 449 U.S. announced would not violate (1980) (quoting protection against jeopardy L.Ed.2d North Carolina v. double inas- Jess’ Pearce, jeopardy guarantee 'impos- much as "the double (1969)) omitted). (emphasis upon power L.Ed.2d 656 es no limitations whatever notes and the Stat Hawai[‘]i remedial Revised amendments, nature of its the circuit utes. can empanel jury also make the same day II: On about COUNT or the 24th finding respect factual with to a defendant February, City County in the and pursuant §§ to HRS as amended Honolulu, Hawai[‘]i, State of BRIAN 1.Act JESS, intentionally knowingly did exert propelled unauthorized over a control vehi I. BACKGROUND cle, by operating the vehicle without Tran, consent Canh owner of vehi said A. Proceedings Initial In The Circuit cle, thereby committing the of Un offense CowrtAnd This Court Vehicle, Propelled authorized Control of On plaintiff-appellant March violation Section 708-836 of the Ha [hereinafter, prosecu State of “the Revised Statutes. wai[‘]i charged by complaint tion”] Jess with rob bery degree, in the first in violation of HRS On December found Jess 708—840(1)(b)(ii) (Count I), § (Supp.1998) and guilty both On January counts. vehicle, propelled unauthorized control of a (1) filed motions to sentence (Supp.1999) violation of HRS offender, repeat pursuant Jess (Count [hereinafter, II), “UCPV”] both (Supp.1999), mandatory 706-606.5 to a charges out arising of an incident wherein years eight minimum sentence six and knifepoint Jess robbed taxi driver at imprisonment, months for an extended complaint specifically took the vehicle. The imprisonment possi- term of of life alleged: bility parole I, pursuant as to Count 706-661, 706-662(1), On day §§ COUNT I: or about the 23rd of HRS' and 706- February, City County 662(4)(a) (Supp.1996), and for the sen- Honolulu, Hawai[‘]i, State of BRIAN tences on the counts to be consec- two served (2004), retroactively, legislature 124 S.Ct. 403] L.Ed.2d Unit- finds that does Booker, 220[, subject any punish- ed States v. 543 U.S. 125 S.Ct. offender to additional (2005), Cunning- disadvantage. L.Ed.2d 621] or other ments California, ham v. 856[, apply 856] 166 L.Ed.2d have held that SECTION 5. Act shall all sen- This fact, any prior tencing resentencing pending proceedings than other or concurrent con- victions, penalty that increases the for a crime date on or commenced after effective Act, beyond ordinary statutory maximum must whether the offense was committed to, on, proven beyond to a submitted or after the effective date of this
Notes
notes as it to Jess. proposition that cannot affect the matter at issue opinion provides at 28-29. HRAP Rule 15 Matavale, present case. See State v. part relevant "[a] circuit court 14; n. 342 n. supreme reserve for the consideration of the Cutsinger, State v. No. question arising any proceed- court a of law (Haw.Ct. 2008 WL at *6 ings plain language before it.” The of this rule 30, 2008) App. (holding Jan. that the ICA's deci authorized the circuit court to seek advice from applied sion to address whether Act could be question adequately us as to a of law. In order retroactively the defendant was not adviso advice, give the circuit court that we must issue, ry opinion on an abstract because the case present all address relevant issues. In the mat- resentencing had to be remanded for and the ter, prosecution has moved for extended term certainty had stated with represented and has that it intends to imprisonment would seek an extended term pursue that course of action on remand. Act 1 speaks pursuant procedures directly set forth in Act 1 on pro- to extended term remand). Accordingly, cedures. an assessment of whether
notes 312)). Wisconsin provides fresh, session this court with con Court, County, in Barland v. Eau Claire support expression legislative clusive Wis.2d 575 N.W.2d de juries use the trier of fact with powers amongst scribing separation respect term fact- to extended government, the three branches noted “ finding and allows us to “conclude with confi powers separation of doctrine states ‘[t]he
notes to his ‘retrospectively statute does not provides merely measure part applied arising relevant in a “[t]his because it case Act apply antedating shall to all or resen from conduct enact statute’s tencing proceedings pending upsets or com ment or on expectations based Act, law[; menced after the effective of this date r]ather the court must ask whether the prior to, provision whether the offense was committed legal new attaches new conse on, or quences completed after the effective date of this Act.” enact events before its ment”); supra specifically Sandoval, See 6. It Cal.Rptr.3d note addresses argues "[b]y answering finding jury, 27. The dissent not with but with the See court. affirmative, [q]uestion in [r]eserved and al- Act P.3d at 579-80. lowing for the of [Hawaii’s extended provides legislative evidence conclusive statute, sentencing] (Supp. term [HRS 706-662 support empanel for the court to circuit 1996),] majority precedent,” namely violates previ- pursuant authority to its inherent that was Maugaotega Dissenting opinion II. at 13. The directing ously lacking, jury, not the obvious, namely, dissent overlooks the court, finding. necessity make the legislature enacted Act 1 decided Mau- after supra Accordingly, conclu- notes 4-5. our said, gaotega II. we have As our decision empanel sion that the circuit Maugaotega guided by expres- II was latest intent, necessity finding make under HRS 706- legislative' specifically sion of Act power necessity principles which vested the to make the 662 is decisis. consistent of stare