State v. RiveraState v. Rivera
Lead Opinion
The defendant-appellant Larry Rivera appeals from the judgment of the circuit court of the first circuit, the Honorable Derrick H.M. Chan presiding, filed on October 8, 2003, convicting him of and sentencing him for the following offenses: (1) promoting a dangerous drug in the third degree, in violation of Hawaii Revised Statute (HRS) § 712-1243 (1993 & Supp.2003);
The prosecution counters, inter alia, that (1) Rivera was properly sentenced to extended
Rivera responds that “pursuant to the United States Supreme Court’s recent decision in Blakely v. Washington, the Hawai'i extended term sentencing scheme, which allows a judge to find enhancement facts, denied [him] of his right to a jury trial.”
We note that this court's analysis and decision in Kaua dispose of Rivera’s first point of error on appeal. Accordingly, we would not address Rivera’s argument that Kaua is unconstitutional in another published opinion were it not for Blakely, which was handed down on June 24, 2004 and cited by the prosecution in its answering brief and which affirms Apprendi and focuses on the defects of determinate sentencing guidelines. Thus, the present matter addresses the question whether Blakely calls the continuing viability of our analysis in Kaua into question.
We hold that Hawai'i’s extended term sentencing scheme is not incompatible with Blakely v. Washington, inasmuch as (1) Blakely addresses only statutory “determinate” sentencing “guideline” schemes, and (2) this court’s “intrinsic-extrinsic” analysis culminating in Kaua is compatible with both Blakely and Apprendi. Additionally, we hold that the circuit court properly sentenced Rivera as a repeat offender.
I. BACKGROUND
On September 27, 2002, the prosecution charged Rivera by complaint with the following
On September 19, 2002, at approximately 8:55 a.m., Reeardo Basuil, a security guard posted at the Island Colony Hotel (the Hotel), responded to a report from the Hotel’s front desk that there was someone sleeping on the twenty-sixth floor. Basuil proceeded to the twenty-sixth floor where he found Rivera sleeping in the hallway. Basuil approached Rivera and, within two feet of him, observed a small plastic bag and an “ice pipe” on the floor two inches from Rivera. Upon recognizing the two items as drug paraphernalia, Basuil directed the Hotel’s front desk to notify the Honolulu Police Department (HPD). HPD Officers Choy, Naka-sone, and Ho'okano thereafter arrived at the Hotel. Officer Choy approached Rivera, who was still sleeping in the hallway, and observed a glass pipe with a bulbous end and a clear plastic “baggy” with a marijuana leaf design printed on it on the floor beside him. Officer Choy took photographs of Rivera and the glass pipe and plastic baggy where they lay. Based on his training and experience, Officer Choy identified the glass pipe as being of the type used to heat crystal methamphetamine and inhale its vapors. Officer Choy also observed that the bulbous portion of the pipe contained a black and white residue, which he judged to be crystal methamphetamine after it has been heated.
Officer Ho'okano placed Rivera under arrest for the promotion of dangerous drugs in the third degree, and Officer Choy proceeded to conduct a search incident to Rivera’s arrest. Officer Choy recovered a small plastic bag containing a leafy vegetable matter and a second small plastic bag containing a crystal-like substance from Rivera’s front pocket. HPD criminalist Stacy Riede testified that, through testing, she determined that the leafy vegetable matter was marijuana and that the crystal-like substance was crystal methamphetamine.
On July 11, 2003, the jury returned a verdict of guilty as charged on all three counts.
On August 6, 2003, the prosecution filed the following motions: (1) a motion for extended terms of imprisonment as a multiple offender, pursuant to
The circuit court conducted a sentencing' hearing on October 8, 2003, during which it considered the prosecution’s two motions for extended terms of imprisonment and the motion for sentencing as a repeat offender. Rivera opposed the prosecution’s motions, but expressly stated that he understood that “the repeat offender statute applies here and that this [c]ourt has an obligation to impose a mandatory minimumf.]” The circuit court granted all three of the prosecution’s motions and orally sentenced Rivera as follows:
THE COURT: ... [Although you come today and say that you [are] making good efforts, and I do commend you for that, I believe, in this particular instance, the [prosecution’s] motion for extended term is warranted. So, therefore, the [prosecution’s] motions for extended term[s] [are] granted. I will not order the terms to be consecutive, but I think there has to be a point in your life for you to take a step forward [rather] than just applying to programs after your trial, and you take a step further. The extensive criminal history, I think it has to be cheeked and double checked, not by the system, but by yourself to make sure you try, and this is really what you want to do.
So, in Count 1, I’ll sentence you to 10 years; in Count 2,10 years; in Count 3, 30 days. In Counts 1 and 2, mandatory minimum sentence of three years and four months.
[T]he [c]ourt having found that [Rivera] is a repeat offender, pursuant toSection 706-606.5 of the Hawai[’]i Revised Statutes [ (HRS) ], based on [Rivera’s prior] conviction for the offense of Promoting a Dangerous Drug in the Second Degree, pursuant to Section 712-1242 of the [HRS], under Criminal No. 95-2564, and [Rivera’s prior] conviction for the offense of Promoting a Dangerous Drug in the Second Degree, pursuant to Section 712-1242 of the [HRS], under Criminal No. 96-1456, and being fully advised in the premises and having orally granted said Motion for Sentencing of Repeat Offender,
IT IS HEREBY ORDERED that the aforesaid motion be[,] and the same is[,] hereby granted, and [Rivera] is sentenced to a mandatory minimum term of imprisonment of three (3) years and four (4) months without the possibility of parole.
On November 3, 2003, the circuit court filed its written findings of fact (FOFs), conclusions of law (COLs), and order granting the prosecution’s motion for extended term of imprisonment as a persistent offender, wherein the circuit court entered the following relevant FOFs, COLS, and order:
1. The [c]ourt finds that Defendant Rivera is a “persistent offender” within the meaning ofSection 706-662(1) of the [HRS] because of the following facts:
a. Defendant Rivera was born on March 8, 1952 and was eighteen (18) years of age or older at the time of the commission of the offenses listed below.
b. On January 20, 1977, in Cr. No. 49175, Defendant Rivera was convicted of the offense of Rape in the Second Degree, an offense which constitutes a class B felony as defined by Act 9, S.L.H. 1972. The offense was committed on March 5, 1976. At all relevant times during these proceedings, Defendant Rivera was represented by counsel....
c. On June 27, 1996, in Cr. No. 95-2564, Defendant Rivera was convicted of the offense of Promoting a Dangerous Drug in the Second Degree, an offense which constitutes a class B felony as defined by the Hawaii Penal Code. The offense was committed on February 1, 1995....
d.On October 15, 1996, in Cr. No. 96-1456, Defendant Rivera was convicted of the offense of Promoting a Dangerous Drug in the Second Degree, an offense which constitutes a class B felony as defined by the Hawaii Penal Code. The offense was committed on October 12.1995....
2. The [c]ourt further finds that Defendant Rivera is a “persistent offender” whose commitment for an extended term is necessary for the protection of the public because of the following facts:
a. Defendant Rivera’s criminal history included eighty-two (82) arrests resulting in three (3) prior felony convictions in addition to convictions for twenty-seven (27) misdemeanor, petty misdemeanor and violations.
b. Defendant Rivera has an extensive criminal history, the characteristics of which have involved a felony conviction for the violent act of Rape in the Second Degree and two (2) separate convictions for Promoting a Dangerous Drug in the Second Degree.
c. Defendant Rivera’s criminality has continued despite being sentenced to periods of both probation and incarceration in his prior convictions. In the instant case, a jury found Defendant Rivera guilty of possession of methamphetamine, drug paraphernalia and marijuana. It is evident that Defendant Rivera’s prior involvement with the criminal justice system has not deterred him from further criminal activity.
d. Defendant Rivera has failed to benefit from the criminal justice system.
e. Defendant Rivera has demonstrated a total disregard for the rights of others and has a poor attitude towards the law.
f. Defendant Rivera has demonstrated a pattern of criminality which indicatesthat he is likely to be a recidivist in that he cannot conform his behavior to the requirement of the law.
g. Due to the quantity and seriousness of Defendant Rivera’s past convictions and the seriousness of the instant offenses, Defendant Rivera poses a serious threat to the communityU and his long term incarceration is necessary for the protection of the public.
3. Pursuant to the consideration of the other sentencing factors under HRS Section 706-606 [(1993) ],[8 ] the [cjourt further finds that extended term sentences need to be imposed to reflect the seriousness of the offenses, to promote respect for law, to provide just punishment for the offenses, to afford adequate deterrence to criminal conduct, to protect the public from farther crimes of Defendant Rivera, to provide Defendant Rivera with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
4. Based on the above, this [cjourt further finds that Defendant Rivera is a “persistent offender”, eligible for extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
ORDER
ACCORDINGLY, IT IS HEREBY ORDERED that the [prosecutionj’s Motion For Extended Term Of Imprisonment Of A Persistent Offender be[,J and the same is, hereby granted. IT IS FURTHER ORDERED that Defendant Rivera be sentenced to the extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
IT IS FURTHER ORDERED that said terms are to run concurrently.
(Emphases added).
Also on November 3, 2003, the circuit court filed its written FOFs, COLs, and order granting the prosecution’s motion for extended terms of imprisonment as a multiple offender, wherein the circuit court entered the following relevant FOFs, COLS, and order:
1. The [cjourt finds that Defendant Rivera is a “multiple offender” within the meaning of HRSSection 706-662(4)(a) because he has been sentenced for two (2) felonies, to wit:
Cr. No. 02-1-2128
Count I:
Promoting a Dangerous Drug in the Third Degree (HRSSection 712-1243 ; a class C felony)
Count II:
Unlawful Use of Drug Paraphernalia (HRS Section 32íM3.5(a); a class C felony)
2. Upon consideration of the nature and circumstances of the offenses and the history and characteristics of Defendant Rivera, as mandated by HRS Section 706-606(1), [see supra note 8,] this [cjourt further finds that Defendant Rivera is a “multiple offender” whose commitment for extended terms is necessary for the protection of the public because of the following facts:
a. Defendant Rivera’s criminal history included eighty-two (82) arrests resulting in three (3) prior felony convictions in addition to convictions for twenty-seven (27) misdemeanor, petty misdemeanor and violations.
b. Defendant Rivera has an extensive criminal history, the characteristics of which have involved a felony conviction for the violent act of Rape in the Second Degree and two (2) separate conviction's for Promoting a Dangerous Drug in the Second Degree.
e.Defendant Rivera’s criminality has continued despite being sentenced to periods of both probation and incarceration in his prior convictions. In the instant case, a jury found Defendant Rivera guilty of possession of methamphetamine, drug paraphernalia and marijuana. It is evident that Defendant Rivera’s prior involvement with the criminal justice system has not deterred him from further criminal activity.
d. Defendant Rivera has, failed to benefit from the criminal justice system.
e. Defendánt Rivera has demonstrated a total disregard for the rights of others and has a poor attitude towards the law.
f. Defendant Rivera has demonstrated a pattern of criminality which indicates that he is likely to be a recidivist in that he cannot conform his behavior to the requirement of the law.
g. Due to the quantity and seriousness of Defendant Rivera’s past convictions and the seriousness of the instant offenses, Defendant Rivera poses a serious threat to the community!,] and his long term incarceration is necessary for the protection of the public.
3. Pursuant to the consideration of the other sentencing factors under HRS Section 706-606[ see supra note 8], the [cjourt further finds that extended term sentences need to be imposed to reflect the seriousness of the offenses, to promote respect for law, to provide just punishment for the offenses, to afford adequate deterrence to criminal conduct, to protect the public from fuHher crimes of Defendant Rivera, to provide Defendant Rivera with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
4. Based on the above, this [c]ourt further finds that Defendant Rivera is a “multiple offender,” eligible for extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
ORDER
ACCORDINGLY, IT IS HEREBY ORDERED that the [prosecution]’s Motion For Extended Terms Of Imprisonment Of A Multiple Offender be[,] and the same is, hereby granted. ,
IT IS FURTHER ORDERED that Defendant Rivera be sentenced to the extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
IT IS FURTHER ORDERED that said terms are to run concurrently.
(Emphases added).
On November 4, 2003, Rivera timely filed a notice of appeal.
II. STANDARDS OF REVIEW
A. Sentencing
[A] sentencing judge generally has broad discretion in imposing a sentence. State v. Gaylord,
Keawe v. State,79 Hawai'i 281 , 284,901 P.2d 481 , 484 (1995). “[Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant’s contentions.” Fry,61 Haw. at 231 ,602 P.2d at 17 . And, “ '[generally, to constitute an abuse it must appear that the court clearly exceeded thebounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.’ ” Keawe, 79 Hawai'i at 284 ,901 P.2d at 484 (quoting Gaylord,78 Hawai'i at 144 ,890 P.2d at 1184 (quoting Kumukau,71 Haw. at 227-28 ,787 P.2d at 688 )).
State v. Kaua,
B. Questions Of Constitutional Law
“We answer questions of constitutional law ‘by exercising our own independent judgment based on the facts of the case,’ ” and, thus, questions of constitutional law are reviewed on appeal “under the ‘right/wrong’ standard.” State v. Jenkins,
Kaua,
C. Statutory Interpretation
“[T]he interpretation of a statute ... is a question of law reviewa-. ble de novo.” State v. Arceo,84 Hawai'i 1 , 10,928 P.2d 843 , 852 (1996) (quoting State v. Camara,81 Hawai'i 324 , 329,916 P.2d 1225 , 1230 (1996) (citations omitted)). See also State v. Toyomura,80 Hawai'i 8 , 18,904 P.2d 893 , 903 (1995); State v. Higa,79 Hawai'i 1 , 3,897 P.2d 928 , 930 (1995); State v. Naka-ta,76 Hawai'i 360 , 365,878 P.2d 699 , 704 (1994)....
Gray v. Administrative Director of the Court,84 Hawai'i 138 , 144,931 P.2d 580 , 586 (1997) (some brackets added and some in original). See also State v. Soto,84 Hawai'i 229 , 236,933 P.2d 66 , 73 (1997). Furthermore, our statutory construction is guided by established rules:
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context,, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.”HRS § 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
Gray,84 Hawai'i at 148 ,931 P.2d at 590 (iquoting State v. Toyomura,80 Hawaii 8 , 18-19,904 P.2d 893 , 903-04 (1995)) (brackets and ellipsis points in original) (footnote omitted). This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.”HRS § 1 — 15(2) (1993). “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be ■ called upon in aid to explain what is doubtful in another.”HRS § 1-16 (1993).
Kaua,
D.Plain Err.or
“ ‘We may recognize plain error when the error committed affects substantial rights of the defendant.’ ” State v. Cordeiro,99 Hawai'i 390 , 405,56 P.3d 692 , 707, reconsideration denied,100 Hawai'i 14 ,58 P.3d 72 (2002) (quoting State v. Jenkins,93 Hawai'i 87 , 101,997 P.2d 13 , 27 (2000) (quoting State v. Cullen, 86 Hawai'i1, 8, 946 P.2d 955 , 962 (1997))). See also [Hawai'i Rules of Penal Procedure] HRPP Rule 52(b) (1993) (“Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court”).
Hauge,
III. DISCUSSION
A. Hawaii’s Extended Term Sentencing Scheme Is Not Incompatible With The United States Supreme Court’s Decision In Blakely v. Washington.
Rivera argues that the United States Supreme Court’s recent decision in Blakely v. Washington renders Hawaii’s extended term sentencing scheme unconstitutional insofar’ as it denied him his right to a jury trial by imposing an extended term sentence based upon facts found by the sentencing court but not by the jury. Rivera submits that the cireúit court could not have extended his terms of imprisonment based solely on the facts that the jury found beyond a reasonable doubt at his trial, because it was the circuit court that made the posttrial finding that extended term sentences were “necessary for the protection of the public.” Rivera propounds that, inasmuch as “this ‘public protection’ finding was ‘essential to the punishment’ [he] received, it had to be made by a jury under Apprendi ” and Blakely. We disagree.
Blakely focused on the perceived defects of Washington state’s determinate sentencing scheme, applying the rule the Court had previously crafted in Apprendi, i.e., that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Aprendi,
The Blakely majority explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” - U.S. at-,
In connection with the foregoing, the Blakely majority reasoned as follows:
Justice O’CONNOR argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. Post, at 2543-2548. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.
-U.S. at-,
Kaua reaffirmed the “intrinsic-extrinsic” analysis first articulated by this court in State v. Schroeder,76 Hawai'i 517 ,880 P.2d 192 (1994), and reaffirmed in State v. Tafoya,91 Hawai'i 261 ,982 P.2d 890 (1999), and rejected the defendant’s argument that Apprendi mandated that a “multiple offender” determination, for purposes ofHRS § 706-662(4)(a) , must be made by the trier of fact, holding (1) thatHRS § 706-662 passed constitutional muster under the Hawai'i and United States Constitutions and (2) that “[t]he facts foundational to ... extended terms of imprisonment ..., pursuant toHRS § 706-662(4)(a) , fell outside the Apprendi rule, and, thus, the ultimate finding that [a defendant] was a ‘multiple offender’ whose extensive criminal actions warranted extended prison terms was properly within the province of the sentencing court.” Kaua,102 Hawai'i at 13 ,72 P.3d at 485 . In so holding, this court noted
the fundamental distinction between the nature of the predicate facts described inHRS §§ 706-662(1) , (3), and (4), ... on the one hand, and those described inHRS §§ 706-662(5) and (6), ... on the other. Specifically, the facts at issue in rendering an extended term sentencing determination underHRS §§ 706-662(1) , (3), and (4) implicate considerations completely “extrinsic” to the elements of the offense with which the defendant was charged and of which he was convicted; accordingly, they should be found by the sentencing judge in accordance with [State v. 'J Huelsman [,60 Haw. 71 ,588 P.2d 394 (1979),] and its progeny. The facts at issue for purposes ofHRS §§ 706-662(5) and (6), however, are, by their very nature, “intrinsic” to the offense with which the defendant was charged and of which he has been convicted; accordingly, they must be found beyond a reasonable doubt by the trier of fact in order to afford the defendant his constitutional rights to procedural due process and a trial by jury. Tafoya,91 Hawai'i at 271-72 ,982 P.2d at 900-01 ; Schroeder,76 Hawai'i at 528 ,880 P.2d at 203 .
Id. at 12-13,72 P.3d at 484-85 (emphases added).
Hauge,
Based on Kaua, we held in Hauge that
The bottom line is that Blakely’s gloss on Apprendi, which addresses only statutory “determinate” sentencing “guideline” schemes, does not undermine the ongoing viability of this court’s decision in Kaua.
1. Hawaii’s indeterminate extended term, sentencing scheme
“Under our system of government, the power to determine appropriate punishment for criminal acts lies in the legislative branch.” State v. Bernades,
In State v. Kido,
Prior to 1965, the paroling authority recommended and the judiciary set the minimum sentence which the convicted defendant was required to serve before becoming eligible for parole and discharge. [Revised Laws of Hawai'i (RLH) ] § 258-52 (1955). In 1965, RLH § 258-52[ ] was amended by Act 102 to take away from the judiciary and instead give to the paroling authority the sole authority to determine minimum terms of imprisonment. Section 258-52, as amended, was recodi-fied in 1968 asHRS § 711-76 , pursuant to Act 16 (1968).. In 1972,HRS § 711-76 was repealed by Act 9 which enacted the Hawaii Penal Code.
As part of the Hawaii Penal Code,HRS § 706-669 [ (1993) ] now provides, inter alia:
§ 706-669 Procedure for determining minimum term of imprisonment. (1) When a person has been sentenced to an indeterminate or an extended term of imprisonment, the Hawaii paroling authority shall, as soon as practicable but no later than six months after commitment to the custody of the director of the department of social services and housing hold a hearing, and on the basis of the hearing make an order fixing the minimum term of imprisonment to be served before the prisoner shall become eligible for parole.
As the commentary onHRS § 706-669 states, “This section continues the policy of the previous law of vesting in the Board of Paroles & Pardons the exclusive authority to determine the minimum time which must be served before the prisoner will be eligible for parole.”
The legislature has also restricted the judiciary’s authority with respect to the kinds of sentences which it may impose. Section 706-660, HRS (1976) provided:
§ 706-660 Sentence of imprisonment for felony; ordinary terms. A person who has been convicted of a felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(1) For a class A felony — 20 years;
(2) For a class B felony — 10 years; and
(3) For a class C felony — 5 years.19 1
The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669 .
Apparently referring to the amendments made by Act 102 (1965), the commentary to
In 1965, the Legislature enacted a law designed to end judicially imposed inconsistent sentences of imprisonment. This policy — known as true indeterminate sentencing — is continued. The court’s discretion is limited to choosing between imprisonment and other modes of sentencing. Once the court has decided to sentence a felon to imprisonment, the actual time of release is determined by parole authorities. Having decided on imprisonment, the court must then impose the maximum term authorized.... [Footnotes omitted.]
Id, at 524-25,
In contrast to Hawaii’s indeterminate sentencing scheme, at issue in Blakely was Washington’s determinate sentencing structure and, particularly, the sentencing court’s imposition of a sentence thirty-seven months in excess of the fifty-three-month upward limit of the statutorily enumerated “standard range.” Blakely, — U.S. at-,
2. The circuit court did not err by sentencing Rivera to extended terms of imprisonment as a persistent and multiple offender.
“It is settled that an extended term sentencing hearing is ‘a separate criminal proceeding apart from the trial of the underlying substantive offense,’ wherein ‘all relevant issues should be established by the state beyond a reasonable doubt.’ ” Kaua,
A convicted defendant may be subject to an extended term of imprisonment if “[t]he defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public[,]” and “[t]he defendant is being sentenced for two or more felonies....”
In Huelsman, this court set out a two-step process in which a sentencing court must engage in order to impose an extended term sentence.
In the course of the October 8, 2003 sentencing hearing, the circuit court orally ruled that Rivera was both a persistent and multiple offender whose extended term sentences were necessary for the protection of the public, see supra. Section I, based in pertinent part on Rivera’s extensive criminal history. The circuit court then reaffirmed, in its November 3, 2003 written FOFs, COLs, and orders granting the prosecution’s motions for extended term sentencing as a persistent and multiple offender, that Rivera’s “long term incarceration [was] necessary for the protection of the public” due to the “quantity and seriousness of ... Rivera’s past convictions and the seriousness of the instant offenses.” Accordingly, the circuit court adhered to the mandate set forth in Huelsman that the sentencing court “shall enter into the record all findings of fact which are necessary to its decision.”
3. Comparison of the judicial determination “to protect the public” at ordinary sentencing and extended term sentencing
Justice Acoba, in his dissent, contends that the crucial factors in determining whether Blakely applies to
It could be said that the analogue of Blakely’s statutory “standard range” prescribed by Hawaii’s indeterminate sentencing scheme for a class C felony is the statutory alternative between a sentence of probation and a five-year term of imprisonment, pursuant to
Thus, had the circuit court imposed upon Rivera a sentence falling within the “standard range” for a class C felony in Counts I and II, it would have chosen either probation or a five-year term of imprisonment, pursuant to
As a general matter, when exercising its broad discretion to impose any particular sentence so as to fit the punishment to the offense as well as to the needs of the individual defendant and the community, the sentencing court bec[omes] obligated to consider theHRS § 706-606 “factors” as part of its decision making process.
...HRS § 706-606(2) [ (1993) ] mandates consideration of the four classicpenal objectives — retribution/just punishment, deterrence, incapacitation, and rehabilitation^]
Gaylord,
HRS § 706-606(2)(e) reflects the penal objective of “incapacitation.”
Incapacitation is the idea of simple restraint: rendering the convicted offender incapable, for a period of time, of offending again. Whereas rehabilitation involves changing the person’s habits or attitudes so he or she becomes less criminally inclined, incapacitation presupposes no such change. Instead, obstacles are interposed to impede the person’s carrying out whatever criminal inclinations he or she may have. Usually, the obstacle is the walls of a prison, but other ineapaeitative techniques are possible — such as exile or house arrest.
[A. von Hirsch and A. Ashworth,] Principled Sentencing at 101 [ (1992) ]. For the latest and probably most definitive empirical study of the relationship between incapacitation and crime reduction, see F. Zimring and G. Hawkins, Incapacitation (1995).
Gaylord,
In the present matter, the circuit court was required first to consider the factors set forth in
Admittedly, a sentencing court’s imposition of an extended term sentence requires the determination that it is “necessary for protection of the public.”
To recapitulate, inasmuch as both
To underscore our point, we note that, within the range of discretion that the Hawaii Penal Code affords courts in imposing sentences,
HRS § 706-668.5 (1993) permits consecutive sentencing if multiple terms of imprisonment are imposed on a criminal defendant at the same time. The legislative purpose of the statute is to give the sentencing court discretion to sentence a defendant to a term of imprisonment to run either concurrently or consecutively. Discretionary use of consecutive sentences is properly imposed in order to deter future criminal behavior of the defendant, to insure public safety, and to assure just punishment for the crimes committed. Absent clear evidence to the contrary, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment underHRS § 706-606 (1993).
State v. Tauiliili, 96 Hawai‘i 195, 199-200,
In the present matter, the circuit court had the discretion under
[B]y the plain language ofHRS § 706-668.5(2) — although subject, pursuant toHRS § 706-668.5(1) , to presumptively concurrent sentencing in connection with multiple prison terms “imposed at the same time” — , the sentencing court [is] obligated to “consider the factors set forth in [HRS § ] 706-606” when determining whether multiple indeterminate prison terms were to run concurrently or consecutively.
... [T]he fact thatHRS § 706-606 is incorporated by reference intoHRS § 706-668.5 has profound significance. Bearing in mind that all indeterminate (including consecutive) prison terms are inherently incapacitative, the legislative sentencing philosophy permeating HRS ch. 706 in general andHRS § 706-606 in particular dictates that discretionary consecutive prison sentences, pursuant toHRS § 706-668.5 , may properly be imposed only if the penal objectives sought to be achieved include retribution (i.e., “just deserts”) and deterrence.
Gaylord,
B. The Circuit CouH Properly Sentenced Rivera As A Repeat Offender.
Rivera argues that the circuit court erred in sentencing him as a repeat offender, pursuant to
The prosecution moved in the present matter for Rivera to be sentenced as a repeat offender, under
Rivera presumably grounds his assertion that the circuit court sentenced him as a repeat offender based upon his conviction of the offense charged in Count II, unlawful use of drug paraphernalia, on the circuit court’s oral ruling, which granted the prosecution’s motion for sentencing of a repeat offender. At the hearing on the prosecution’s motion, the circuit court granted the prosecution’s motions for extended terms of imprisonment and stated that “in Count 1, I’ll sentence you to 10 years; in Count 2, 10 years; in Count 3, 30 days. In Counts 1 and 2, mandatory minimum sentence of three years and four months.” (Emphasis added). However, in its October 13, 2003 written order granting the prosecution’s motion for repeat offender sentencing, the circuit court did not specify the count to which the mandatory minimum term of imprisonment applied. Rivera correctly notes that the offense of unlawful use of drug paraphernalia is not among those class C felonies enumerated in
As a preliminary matter, we note that Rivera is judicially estopped from challenging his sentence as a repeat offender.
Pursuant to the doctrine of judicial estoppel,
[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.
Roxas v. Marcos,
2. The defendant appeared before this [cjourt on October 8, 2003 for sentencing in the above-entitled case. At that time, this [e]ourt imposed the following sentence upon the defendant:
In Count one — 10 years (as a persistent and multiple offender) concurrent, with a mandatory minimum sentence of three years and four months.
In Count two — 10 years (as a persistent and multiple offender) concurrent.
In Count three — 30 days with credit for time served.
(Emphases added). That being so, Rivera cannot comply with Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2004), which requires that he show “where in the i-eeord the alleged error was objected to or the manner in which the alleged error was brought to the attention of the eourt[.]” Rivera cannot now “take a position in regard to [his sentence as a repeat offender that] is directly contrary to” what he asserted at sentencing, nor may he raise as error a point on appeal to which he did not object at sentencing. Roxas,
Even if the circuit court’s oral grant of the prosecution’s motion for repeat offender sentencing misstated that Rivera’s mandatory minimum prison term applied to both Counts I and II, “[e]rror is not to be viewed in isolation [or] considered purely in the abstract.” Aplaca,
The fact that the error, in this case, implicates [Riverajs sentence and not his conviction does not render the. harmless error doctrine inapplicable. To the contrary,HRS § 641-16 (1993) expressly states that “[n]o order, judgment, or sentence shall be reversed or modified unless the court is of the opinion that error was committed which injuriously affected the substantial' rights of the appellant.” (Emphasis added). In addition, [Hawai‘i Rules of Penal Procedure (HRPP) ] Rule 52, which provides that “[a]ny error, defect, irregularity!!,] or variance which does not affect substantial rights shall be disregarded!!,]” is applicable to all penal proceedings, including sentencing. (Emphasis added.) See HRPP Rule 54(a) (2000) (“These rules shall apply to all penal proceedings in all courts of the State of Hawaii except as provided in subsection (b) of this rule.”). Moreover, the United States Supreme Court has stated that most constitutional errors, including those at sentencing, can be harmless. See, e.g., Arizona v. Fulminante,499 U.S. 279 , 306,111 S.Ct. 1246 ,113 L.Ed.2d 302 (1991).
Id. (brackets in original).
In its October 13, 2003 written order granting the prosecution’s motion for repeat offender sentencing, the circuit court imposed only one mandatory minimum prison term of three years and four months. In addition, the circuit court imposed extended term sentences of ten years in Counts I and II to run concurrently. Accordingly, any error that the circuit court committed by orally stating that the mandatory minimum term of imprisonment applied both to Counts I and II was harmless, because Rivera is, in fact, serving only one mandatory minimum term of imprisonment of three years and four months. Moreover, by his own express admission, Rivera clearly understood that the cireuit court (1) had “an obligation to impose a mandatory minimum” term of imprisonment under
IV. CONCLUSION
Based on the foregoing analysis, we affirm the circuit court’s judgment of conviction, extended term sentences, and repeat offender sentence.
Notes
.
(1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is a class C felony.
(3) Notwithstanding any law to the contrary, except for first-time offenders sentenced under section 706-622.5, if the commission of the offense of promoting a dangerous drug in the third degree under this section involved the possession or distribution of methamphel-amine, the person convicted shall be sentenced to an indeterminate term of imprisonment of five years with a mandatory minimum term of imprisonment, the length of which shall be not less than thirty days and not greater than two- and-a-half years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment.
.
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant tosection 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.
.
(1)A person commits the offense of promoting a detrimental drug in the third degree if
the person knowingly possesses any marijuana or any Schedule V substance in any amount.
(2)Promoting a detrimental drug in the third degree is a petty misdemeanor.
.
Criteria for extended terms of imprisonment. A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:
(1) The defendant is a persistent offender whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has previously been convicted of two felonies committed at different times when the defendant was eighteen years of age or older.
(3) The defendant is a dangerous person whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has been subjected to a psychiatric or psychological evaluation that documents a significant history of dangerousness to others resulting in criminally violent conduct, and this history makes the defendant a serious danger to others. Nothing in this section precludes the introduction of victim-related data in order to establish dangerousness in accord with the Hawaii rules of evidence.
(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or
(b) The maximum terms of imprisonment authorized for each of die defendant’s crimes, if made to run consecutively, would equal or exceed in length the maximum of the extended term imposed or would equal or exceed forty years if the extended term imposed is for a class A felony.
(5) The defendant is an offender against the elderly, handicapped, or a minor under the age of eight, whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:
(a) The defendant attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and
(b) The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who is:
(i) Sixty years of age or older;
(ii) Blind, a paraplegic, or a quadriplegic; or
(iii) Eight years of age or younger; and
(c) Such disability is known or reasonably should be known to the defendant.
(6) The defendant is a hate crime offender whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:
(a) The defendant is convicted of a crime under chapter 707, 708, or 711; and
(b) The defendant intentionally selected a victim, or in the case of a property crime, the property that was the object of a crime, because of hostility toward the actual or perceived race, religion, disability, ethnicity, national origin, gender identity or expression, or sexual orientation of any person. For purposes of this subsection, "gender identity or expression" includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.
. We decline Rivera’s invitation to overrule Kaua and Hauge for the reasons discussed infra in Section III.A.
.
Sentencing of repeat offenders. (1) Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies: section 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters; section 707-703 relating to negligent homicide in the first degree; 707-711 relating to assault in the second degree; 707-713 relating to reckless endangering in the first degree; 707-716 relating to terroristic threatening in the first degree; 707-721 relating to unlawful imprisonment in the first degree; 707-732 relating to sexual assault or rape in the third degree; 707-735 relating to sodomy in the third degree; 707-736 relating to sexual abuse in the first degree; 707-751 relating to promoting child abuse in the second degree; 707-766 relating to extortion in the second degree; 708-811 relating to burglary in the second degree; 708-821 relating to criminal property damage in the second degree; 708-831 relating to theft in the first degree as amended by Act 68, Session Laws of Hawaii 1981; 708-831 relating to theft in the second degree; 708-835.5 relating to theft of livestock; 708-836 relating to unauthorized control of propelled vehicle; 708-852 relating to forgery in the second degree; 708-854 relating to criminal possession of a forgery device; 708-875 relating to trademark counterfeiting; 710-1071 relating to intimidating a witness; 711-1103 relating to riot; 712-1203 relating to promoting prostitution in the second degree; 712-1221 relating to gambling in the first degree; 712-1224 relating to possession of gambling records in the first degree; 712-1243 relating to promoting a dangerous drug in the third degree; 712-1247 relating to promoting a detrimental drug in the first degree; 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; 134-8 relating to ownership, etc., of prohibited weapons; 134-9 relating to permits to carry, or who is convicted of attempting to commit murder in the second degree, any class A felony, any class B felony, or any of the class C felony offenses enumerated above and who has a prior conviction or prior convictions for tire following felonies, including an attempt to commit the same: murder, murder in the first or second degree, a class A felony, a class B felony, any of the class C felony offenses enumerated above, or any felony conviction of another jurisdiction shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:
(b) Two prior felony convictions:
(iv) Where the instant conviction is for a class C felony offense enumerated above — three years, four months;
(2) Except as in subsection (3), a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows:
(d) Within ten years after a prior felony conviction where the prior felony conviction was for a class B felonyf.]
(Emphasis added.)
. We further note that on December 9, 2004, the United States District Court for the District of Hawai'i, the Honorable Susan Old Mollway presiding, filed an order in Kaua v. Frank, Civ. No. 03-00432 SOM/BMK,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
The district court held that this court’s conclusion in Kaua,
.
Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
(Emphases added).
.
Sentence of imprisonment for class B and C felonies; ordinary terms. A person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses andsection 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(1) For a class B felony — -10 years; and
(2) For a class C felony — 5 years.
The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.
(Emphasis added).
.
Sentence of imprisonment for felony; extended terms. In the cases designated insection 706-662 , a person who has been convicted of a felony may be sentenced to an extended indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(1) For murder in the second degree — life without the possibility of parole;
(2) For a class A felony — indeterminate life term of imprisonment;
(3) For a class B felony — indeterminate twenty-year term of imprisonment; and
(4) For a class C felony — indeterminate ten-year term of imprisonment.
The minimum length of imprisonment for [paragraphs] (2), (3), and (4) shall be determined by the Hawaii paroling authority in accordance with section 706-669.
(Emphases added.)
.
Authorized disposition of convicted defendants. (1) Except as provided in parts II and IV of this chapter or in section 706-647 and subsections (2) and (6) of this section and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:
(a) To he placed on probation as authorized by part II of this chapter;
(b) To pay a fine as authorized by part III and section 706-624 of this chapter;
(c) To be imprisoned for a term as authorized by part IV of this chapter;
(d) To make restitution in an amount the defendant can afford to pay; provided that the court may order any restitution to be paid to victims pursuant to section 706-646 or to the crime victim compensation special fund in the event that the victim has been given an award for compensation under chapter 351 and, if the court orders, in addition to restitution, payment of fine in accordance with paragraph (b), the payment of restitution and a compensation fee shall have priority over the payment of the fine; payment of restitution shall have priority over payment of a compensation fee; or
(e)To perform services for the community under the supervision of a governmental agency or benevolent or charitable organization or other community service group or appropriate supervisor; provided that the convicted person who performs such services shall not be deemed to be an employee of the governmental agency or assigned work site for any purpose. All persons sentenced to perform community service shall be screened and assessed for appropriate placement by a governmental agency coordinating public service work placement as a condition of sentence.
(2) The court shall not sentence a defendant to probation and imprisonment except as authorized by part II of this chapter.
(Emphases added).
.
Multiple sentence of imprisonment. (1) If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms run concurrently.
(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth insection 706-606 .
Dissenting Opinion
Dissenting Opinion by
In light of Blakely v. Washington, — U.S. -,
I.
Following a jury trial, Defendant was convicted of Count I, Promoting a Dangerous Drug in the Third Degree, Hawai'i Revised Statutes (HRS)
Criteria for extended terms of imprisonment. A convicted defendant may be subject to an extended term of imprisonment under
(1) The defendant is a persistent offender whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has previously been convicted of two felonies committed at different times when the defendant was eighteen years of age or older.
(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:
(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony[.]
(Emphases added.)
In sentencing Defendant as a persistent offender, the court made the following “findings of fact”:
1. The Court finds that [Defendant] is a “persistent offender” within the meaning of Section 706-662(1) of the [HRS] because of the following facts:
a. [Defendant] was born on March 8, 1952 and was eighteen (18) years of age or older at the time of the commission of the offenses listed below.
b. On January 20, 1997, in Cr. No. 49175, [Defendant] was convicted of the offense of Rape in the Second Degree, an offense which constitutes a class B felony as defined by Act 9, S.L.H. 1972. The offense was committed on March 5, 1976. At all relevant times during these proceedings, [Defendant] was represented by counsel, to wit, Ed Worth and/or Marie Milks.
e. On June 27, 1996, in Cr. No. 95-2564, [Defendant] was convicted of the offense of Promoting a Dangerous Drug in the Second Degree, an offense which constitutes a class.B felony as defined by the Hawaii Penal Code. The offense was committed on February 1,1995. At all relevant times during these proceedings, [Defendant] was represented by counsel, to wit, Deputy Public Defender Debra Loy.
d. On October 15, 1996, in Cr. No. 96-1456, [Defendant] was convicted of the offense of Promoting a Dangerous Drug in the Second Degree, an offense which constitute a class B felony as defined by the Hawaii Penal Code. The offense was committed on October 12, 1995. At all relevant times during these proceedings, [Defendant] was represented by counsel, to wit, Deputy Public Defender Debra Loy.
2. The Court further finds thát [Defendant] is a “persistent offender” whose commitment for an extended term is necessary for the protection of the public because of the following facts:
a. [Defendant’s] criminal history includes eighty-two (82) arrests resulting in three (3) prior felony convictions in addition to convictions for twenty-seven (27) misdemeanor, petty misdemeanor and violations.
b. [Defendant] has an extensive criminal history, the characteristics of which have involved a felony conviction for the
violent act of Rape in the Second Degree and two (2) separate convictions for Promoting a Dangerous Drug in the Second Degree.
c. [Defendant’s] criminality has continued despite being sentenced to periods of both probation and incarceration in his prior convictions. In the instant case, a jury found [Defendant] guilty of possession of methamphetamine, drug paraphernalia and marijuana. It is evident that [Defendant’s] prior involvement with the criminal justice system has not detemd him from further criminal activity.
d. [Defendant] has failed to benefit from the criminal justice system.
e. [Defendant] has demonstrated a total disregard for the rights of others and has a poor attitude toward the laiv.
f. [Defendant] has demonstrated a pattern of criminality which indicates that he is likely to be a recidivist in that he cannot confim his behavior to the requirement of the law.
g. Due to the quantity and seriousness of [Defendant’s] past convictions and the seriousness of the instant offenses, [Defendant] poses a serious threat to the community and his long teivn incarceration is necessary for the protection of the public.
3. Pursuant to consideration of the other sentencing factors under HRSSection 706-606 , the Court further finds that extended term sentences need to be imposed to reflect the seriousness of the offenses, to promote respect for law, to provide just punishment for the offenses, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of [Defendant], to provide [Defendant] with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
4. Based on the above, this Court further finds that [Defendant] is a “persistent offender,” eligible for extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
1. The Court finds that [Defendant] is a “multiple offender” within the meaning of HRSSection 706-662(4)(a) because he has been sentenced for two (2) felonies, to wit:
Cr. No. 02-1-2128
Count I:
Promoting a Dangerous Drug in the Third Degree (HRSSection 712-1243 ; a class C felony)
Count II:
Unlawful Use of Drug Paraphernalia (HRS Section 32£M3.5(a); a class C felony)
2. Upon consideration of the nature and circumstances of the offenses and the history and characteristics of [Defendant], as mandated by HRS Section 796-606(1), this Court further finds that [Defendant] is a “multiple offender” whose commitment for extended terms is necessary for the protection of the public because of the following facts:
a. [Defendant’s] criminal history includes eighty-two (82) arrests resulting in three (3) prior felony convictions in addition to convictions for twenty-seven (27) misdemeanor, petty misdemeanor and violations.
b. [Defendant] has an extensive criminal history, the characteristics of which have involved a felony conviction for Rape in the Second Degree and two (2) separate convictions for Promoting a Dangerous Drug in the Second Degree.
c. [Defendant’s] criminality has continued despite being sentenced to periods of both probation and incarceration in his prior convictions. In the instant case, a jury found [Defendant] guilty of possession of methamphetamine, drug paraphernalia and marijuana. It is evident that [Defendant’s] 'prior involvement rvith the criminal justice system has not deterred him from further criminal activity.
d. [Defendant] has failed to benefit from the criminal justice system.
e. [Defendant] has demonstrated a total disregard for the 'rights of other and has a poor attitude toward the law.
f. [Defendant] has demonstrated a pattern of criminality which indicates that he is likely to be a recidivist in that he cannot confirm his behavior to the requirement of the latv.
g. Due to the quantity and seriousness of [Defendant’s] past convictions and the seriousness of the instant offenses, [Defendant] poses a serious threat to the community and his long term incarceration is necessary for the protection of the public.
3. Pursuant to consideration of the other sentencing factors under HRSSection 706-606 , the Court further finds that the extended term sentences need to be imposed to reflect the seriousness of the offenses, to promote respect for law, to provide just punishment for the offenses, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of [Defendant], to provide Defendant Rivera with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
4. Based on the above, this Court further finds that [Defendant] is a “multiple offender,” eligible for extended terms of imprisonment of ten (10) years for each of the class C felony offenses in Counts I and II.
(Emphases added.)
The majority attempts to distinguish Blakely from this case on the grounds that (1) Blakely addresses “determinate” sentencing, as opposed to an indeterminate sentencing scheme, majority opinion at 159,
II.
In Blakely, “second-degree kidnaping [was] a class B felony” punishable by “a term of ten years” under a Washington statute. — U.S. at -,
The United States Supreme Court “reversed” the judgment. It noted that “[t]he facts supporting that finding” of “ ‘deliberate cruelty’ ” “were neither admitted by petitioner nor found by a jury.” Id. at -,
the ... “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ivhich the law makes essential to the punishment, and the judge exceeds his proper authority.
Id. (emphasis in original and emphasis added) (internal quotation marks and citation omitted). The Supreme Court indicated that “[t]he judge in this case [then] could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea[ ]” because “to justify an exceptional sentence ... factors other than those which are used in computing the standard range sentence for the offense” must be “take[n] into account[.]” Id. (internal quotation marks and citation omitted). The fact that discretion is exercised in arriving at an enhanced sentence is not determinative inasmuch as the judge “cannot make that judgment without finding some facts to support it beyond the bare elements of the offense.” Id. Hence, “[w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.” Id. (emphases in original). Thus,
labels do not afford an acceptable answer[ ] ... as ... to the constitutionally novel and elusive distinction between “elements” and “sentencing factors[ ]” [because] ... the relevant inquiry is not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?
Apprendi,
III.
In this ease the “ordinary” “maximum” term for each of the offenses under Counts I and II is five years’ imprisonment.
In extending the ordinary sentence, i.e., increasing the penalty from five years’ imprisonment to ten years pursuant to HRS § '706-662 on each one of the counts, the court was required (after establishing threshold facts) to determine that doubling the sentence was “necessary for the protection of the public.”
Similar to Blakely, “factors other than those which are used in computing the standard range sentence for the offense” were “considered.” — U.S. at-,
IV.
Although Blakely concerned a “determinate” sentencing scheme, the Supreme Court nowhere limited the Sixth Amendment’s reach in Blakely to only such approaches.
Hence, in the case before us, it is the findings of the court, based on facts and factors not submitted to the jury, that resulted in a prison term beyond that simply attributable to the guilty verdict. In imposing the extended sentences, the court was not deciding a sentence within fixed statutory limits, (as in the example of indeterminate sentencing provided by the Blakely majority referred to stupra), but whether to impose an additional term of imprisonment. By rough analogy, the presumptive standard range of forty-nine to fifty-three months for the offense in Blakely is akin to the five-year indeterminate sentence in the instant case, and the “sentence enhancement” by the Washington judge extending the sentence to ninety months based upon findings of “deliberate cruelty” is the equivalent of the extended term proceeding based on persistent and multiple offender findings in this case. The extended term proceeding under the logic of Blakely would be a proceeding subject to the right to jury trial under the Sixth Amendment.
Even outside that analogy, the manifest purpose of the extended term hearing conducted here was to enlarge the indeterminate sentence of five years to ten years on each of Counts I and II. Insofar as an extended term is imposed in addition to the ordinary indeterminate sentence authorized by the jury’s verdict, that extended term does not fall within the maximum sentence a judge may impose by virtue of a guilty verdict. Consequently, with respect to extended sentences under our “indeterminate” sentencing structure, “the required finding[s by the court] expose the defendant to a greater punishment than that authorized by the jury verdict[.]” Id. at 494,
V.
That in Blakely, the judge found the “petitioner had acted with ‘deliberate cruelty,’” id. at-,
VI.
It begs the question, then, to find Appren-di inapplicable on the basis that an extended sentence hearing is a two “step” procedure, the first requiring
a finding beyond a reasonable doubt that the defendant is a multiple offender, which finding may not be made unless the defendant is being sentenced for two or more felonies or is under sentence for a felony and the maximum terms of imprisonment authorized for the defendant’s crimes met certain requisites[ ] ... [and the] second[,] ... to determine whether the defendant’s commitment for an extended term is necessary for the protection of the publie[,] ... [the latter] dealing] with the subject matter of ordinary sentencing[,]
Kaua,
It would appear inconsistent with Appren-di and Blakely, then, to hold, for example, that “the ultimate finding that [a defendant] was a ‘multiple offender’ whose extensive criminal actions warranted extended prison terms was [one] properly within the province of the sentencing court.” Id. at 13,
The “intrinsic-extrinsic” framework referred to in Kaua is an analogue of the “distinction between ‘elements’ and ‘sentencing factors’,” Apprendi,
VII.
I cannot agree with the majority’s rationale for distinguishing our “intrinsic-extrinsic” paradigm from the implications of Blakely. With all due respect, I believe the majority’s position rests on at least two faulty premises. First, the majority maintains there exists an equation between consideration of the “protection of the public” factor as part of the general sentencing considerations under
On its face,
Thus, the commentary to
With the exception of special problems calling for extended terms of incarceration as provided in subsequent sections, it provides for only one possible maximum length of imprisonment for each class of felony....
Once the court has decided to sentence a felon to imprisonment, the actual time of release is determined by parole authorities. Having decided on imprisonment, the court must then impose the maximum term authorized.
[T]his section embodies a policy of differentiating exceptional problems calling for extended terms of imprisonment from the problems which the vast majority of offenders presentí.]
(Emphasis added.) (Footnotes omitted.) Quoting from an American Bar Association study, the commentary continues as follows:
[M]any sentences authorized by statute in this country are, by comparison to other countries and in terms of the needs of the public, excessively long for the vast majority of eases. Their length is undoubtedly the product of concern for protection against the most exceptional cases, most notably the particularly dangerous offender and the professional criminal. It would be more desirable for the penal code to differentiate explicitly between most offenders and such exceptional cases, by providing lower, more realistic sentences for the former and authorizing a special term for the latter.
The sentences 'provided in this section, when compared to the extended sentences authorized in subsequent sections seek to achieve the recommended explicit differentiation.
(Quoting ABA Standards § 2.5.) (Ellipsis points and brackets in original.) (Footnote omitted.) Hence, in the “subsequent sections” referred to, such as
An extended term, then, is intended to “explicitly] differentiat[e],” commentary to
Accordingly, “the determination that it is ‘necessary for protection of the public[,]’
Under our penal code, then, there is a substantial difference between choosing between probation and the ordinary indeterminate sentence, and between an indeterminate sentence and an extended sentence. For purposes of Apprendi and Blakely, the distinction is even more apparent for inasmuch as in the former category, both a sentence of probation or an indeterminate sentence are authorized by the jury verdict, in the latter category only the indeterminate sentence (and not the extended sentence) can legitimately be the product of a jury verdict.
VIII.
The second mistaken premise is the majority’s proposition that “[h]ad the circuit court
Obviously, the court did not sentence Defendant to serve the ordinary five-year prison term in Count I, consecutive to the ordinary five-year prison term in Count II. And just as clearly it had the discretion to do so under
The parties and the court apparently perceived what should be manifest — that there is a substantial difference between two ordinary five-year terms served consecutively and two extended ten-year terms served concurrently. The fact that the two consecutive five-year terms amount to a ten-year indeterminate term and the two ten-year extended terms run concurrently, does not mean that the minimum terms to be actually served as set by the paroling authority would be the same in both eases. The defendant who must serve an extended sentence faces a greater HPA minimum sentence determination
When setting a defendant’s minimum sentence, the HPA considers six “aggravating” factors that “may be accorded weight in favor of a longer minimum sentence of imprisonment!!,]” including whether the “inmate is a persistent offender, professional criminal, dangerous person, multiple offender, or offender against the elderly, handicapped or minor, and sentenced to an extended period of imprisonment.”
Therefore, such “ten year sentences” are in fact not “the same” as the majority maintains.
. Both the prosecution and Defendant cite to Blakely. In Defendant's case, the court filed its . judgment of conviction and sentence on October 8, 2003. The Supreme Court decided Blakely on June 24, 2004. Thus, inasmuch as Defendant’s case was pending on direct review when Blakely was decided, he is entitled to retroactive application of the Supreme Court opinion in Blakely. Cf. State v. Garcia, 96 Hawaii 200,
. The United States District Court for the District of Hawai'i, Judge Susan Oki Mollway, has arrived at a similar application of Apprendi in Kaua v. Frank, Civ. No. 03-00432,
.
Sentence of imprisonment for class ... C felonies; ordinary terms. A person who has been convicted of a ... class C felony may be sentenced to an indeterminate term of imprisonment. ... When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(2) For a class C felony — 5 years.
The maximum length of imprisonment shall be determined by the Hawaii paroling authority in accordance withsection 706-669 .
(Emphases added.)
.In light of the fact that Kaua was binding on the court, the court was correct in following precedent.
. I do not agree that Blakely is a mere "gloss" on Apprendi, as the majority contends. Majority opinion at 156,
. The distinction between "sentencing facts” and "elements of crimes” was the way by which "legislatures could indicate whether a judge or a jury must make the relevant factual determination.” Blakely, - U.S. at -,
. As the Court’s majority said, "[tjhis case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.” Blakely, -.U.S. at -,
.
Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
ial To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
(Emphasis added.)
.
A defendant who has been convicted of a crime may be sentenced to a term of probation unless:
(1) The crime is first or second degree murder or attempted first or second degree murder;
(2) The crime is a class A felony, except class A felonies defined in chapter 712, part IV, and by section 707-702;
(3) The defendant is a repeat offender under section 706-606.5;
(4) The defendant is a felony firearm offender as defined in section 706-660.1(2); or
(5) The crime involved the death of or the infliction of serious or substantial bodily injury upon a child, an elder person, or a handicapped person under section 706-660.2
(Emphasis added.)
.
Requirement of probation; exception. When a person who has been convicted of a felony is not sentenced to imprisonment, the court shall place the person on probation. Nothing in this pan shall prohibit the court from suspending any sentence imposed upon persons convicted of a crime other than a felony.
(Emphasis added.)
. See supra note 3.
.
Sentence of imprisonment for felony; extended terms. In the cases designated insection 706-662 , a person who has been convicted of a felony may be sentenced to an extended indeterminate term of imprisonment. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:
(4) For a class C felony-indeterminate ten-year term of imprisonment.
The minimum length of imprisonment for [paragraph] ... (4) shall be determined by the Hawaii paroling authority in accordance withsection 706-669 .
.
. The HPA has the authority to "establish guidelines for the uniform determination of minimum sentences which shall take into account both the nature and degree of the offense of the prisoner and the prisoner's criminal history and character.”