*1 spondent Sonson also shall reimburse the
Disciplinary Board for the costs associated proceeding,
with this as determined timely
court submission of a bill of after
costs.
IT FINALLY IS ORDERED Re- shall,
spondent days within Sonson ten suspension
after effective date of
order, with this file affidavit full 2.16(d).
compliance with RSCH Hawai'i, Plaintiff-Appellee,
STATE
Larry RIVERA, Defendant-Appellant.
No. 26199. Court Hawai'i.
Dec. *2 presiding, filed on October
H.M. Chan
sentencing him
2003, convicting
of and
him
following
promoting
offenses:
in viola-
drug
degree,
third
dangerous
in the
(HRS)
*3
Statute
tion
Hawaii Revised
of
S,
defender,
Tabe, deputy
public
James
(1993
(2)
Supp.2003);1
§
unlaw-
&
briefs,
defendant-appellant Larry
for the
of
drug paraphernalia,
in violation
ful
of
use
Rivera.
(3)
329-43.5(a) (1993);2
promot-
§
and
HRS
Anderson,
degree, in
ing
drug in the third
deputy prosecuting
a detrimental
James M.
(1993).3
§ 712-1249
On
briefs,
of
violation
attorney,
plaintiff-appel-
on the
for the
circuit court
appeal, Rivera contends
of Hawaii.
lee State
(1)
granting
in
the motions
as follows:
erred
LEVINSON,
MOON, C.J.,
[hereinafter,
of Hawaii
“the
of the State
ACOBA, J.,
NAKAYAMA,33.; and
(a)
for
term of
prosecution”]
DUFFY,
joins.
dissenting with whom
J.
offender,” pur-
imprisonment
“persistent
as a
(1993
Supp.
§
&
suant to HRS
LEVINSON,
Opinion
J.
of the Court
(b)
2003),4
imprison-
of
extended terms
Larry
ap-
offender,”
defendant-appellant
to
pursuant
The
“multiple
ment
aas
(1993
706-662(4)(a)
judgment
Supp.2003),
§
circuit court
&
see
peals from the
of the
circuit,
as
did not
note
inasmuch
first
the Honorable
Derrick
any marijuana
knowingly possesses
provides:
person
1. HRS 712-1243
any
any
V substance in
amount.
or
Schedule
(1) person
promot-
A
the offense of
commits
drug
(2)Promoting
in the
a detrimental
degree
ing dangerous drug
third
if the
a
in the
degree
petty
is
third
a
misdemeanor.
any
knowingly possesses
dangerous
person
drug
part:
provides
amount.
relevant
4.HRS
(2)
drug
Promoting dangerous
in the third
a
imprison-
for extended terms of
Criteria
degree
felony.
a class C
may
subject
is
defendant
be
ment. A convicted
(3) Notwithstanding any
contrary,
law to the
imprisonment under
extended term of
to an
except
sentenced under
for first-time offenders
if the convicted defendant
section
706-622.5,
following
if
section
the commission of the
one or more of the
criteria:
satisfies
(1)
promoting
dangerous drug
persistent
in the
a
offender
offense of
The defendant
is
imprisonment
degree
for an extended term
third
under this section involved the
whose
public.
necessary
protection
possession
methamphel-
of
for
or distribution
finding
amine,
make
un-
The court shall not
this
person convicted shall be sentenced
previously
been
less
defendant
imprisonment
term
of
to
of
at differ-
of
felonies committed
victed
two
years
mandatory minimum
of
five
imprisonment,
with a
eighteen
the defendant was
ent times when
length which
of
shall be not
years
age
or older.
thirty days
greater
less than
and not
than two-
years, at the
of the sen-
and-a-half
discretion
person
dangerous
is a
The defendant
tencing
person
The
convicted shall not
court.
imprisonment for an extended term
whose
eligible
during
mandatory
parole
be
for
public.
necessary
protection
for
period
imprisonment.
finding un-
not make
The court shall
this
subjected to
has been
329-43.5(a)
less
psychiatric
provides:
2. HRS
psychological
or
evaluation
use,
any person
It is
for
to
or to
unlawful
danger-
history
significant
documents
use, drug paraphernalia
possess
to
with intent
criminally
resulting
ousness
others
harvest,
cultivate, grow,
plant, propagate,
conduct,
history
and this
makes the
violent
convert,
manufacture, compound,
produce,
danger
to others.
a serious
defendant
Nothing
test, analyze, pack, repack,
process, prepare,
precludes
intro-
this section
store,
conceal,
inhale,
contain,
ingest,
inject,
in order
of victim-related data
duction
body
human
introduce into the
otherwise
dangerousness in
with the
accord
establish
chap-
controlled substance
violation
evidence.
Hawaii rules of
Any person
ter.
who violates this section is
multiple
is a
offender whose
The defendant
guilty
upon
of a class C
conviction
were so extensive
criminal actions
pursuant
imprisoned
to section 706-
imprisonment
an extended
for
and,
appropriate
provided
660
706-641,
if
section
pub-
necessary
protection of the
term is
pursuant
section
fined
706-640.
finding
shall not make this
lic.
unless:
provides:
3. HRS 712-1249
(a)
being
The defendant is
sentenced
two
(1)A
already
sen-
person
promot-
commits the offense
or more felonies or
felony;
degree
drug
if
tence of
in the third
detrimental
(2003)”;5
imprison-
that such
Hawaii
79 P.3d
decide
extended terms
mandatory
him
minimum
necessary
ment were
and four
and, therefore,
term of
three
public,
the extended term
months
conviction
unlawful use
for his
imposed by
circuit
sentences
court ran
pursuant
§ 329-
drug paraphernalia,
to HRS
afoul
the United States
Court’s
43.5(a),
drug
as unlawful use of
inasmuch
Jersey,
Apprendi
New
decision
v.
U.S.
paraphernalia is not
one
the enumerated
(2000),
On Drug Degree, an offense granting prosecution’s the Second a written order offender, felony repeat as a motion for which constitutes class B following: which stated the Hawaii Code. The defined Penal February committed on offense was having [T]he [c]ourt [Rivera] found offender, 1995.... repeat pursuant is a to Section Stat- Hawai[’]i 706-606.5 of the Revised 15, 1996, in No. d.On Cr. October (HRS) ], prior] based [ [Rivera’s utes 96-1456, convict- Defendant Rivera Promoting a conviction for the offense of Promoting a Dan- ed the offense Degree, Dangerous Drug the Second Drug Degree, gerous the Second pursuant Section B a class felo- offense which constitutes [HRS], No. under Criminal ny as the Hawaii Penal Code. defined prior] offense conviction for the [Rivera’s on October was committed offense Dangerous Drug in the Promoting a 12.1995.... 712- Degree, pursuant Second Section 2. The further finds Defen- [c]ourt [HRS], 1242 of the No. under Criminal “persistent is a offender” dant Rivera prem- being fully advised for an term is whose commitment orally granted Motion having said ises necessary public protection of the for the Offender, Repeat Sentencing following facts: because IT IS HEREBY ORDERED his- criminal a. Rivera’s Defendant is[,] be[,] aforesaid and the same motion tory eighty-two re- included arrests hereby granted, and is sentenced [Rivera] sulting prior felony convic- in three impris- mandatory minimum term tions in addition to convictions for (3) years and four onment three (27) misdemeanor, petty twenty-seven possibility parole. months without the and violations. misdemeanor circuit court On November b. Rivera has exten- Defendant (FOFs), findings its con- filed written fact history, sive criminal the characteristics (COLs), granting clusions of law order involved a convic- of which have prosecution’s motion Rape act tion the violent offender, persistent as a (2) separate and two Degree Second follow- wherein circuit entered the Dangerous Promoting victions for COLS, FOFs, ing relevant and order: *7 Drug Degree. in the Second 1. finds that Defendant [c]ourt criminality c. Defendant Rivera’s a “persistent Rivera is offender” within the being pe- despite to continued meaning of Section probation riods of and incarceration both following facts: [HRS] because of the prior instant in his convictions. In the a. Rivera was born on Defendant case, found Rivera Defendant eighteen March and methamphet- guilty possession age or older the time amine, marijua- drug paraphernalia and commission of the listed below. offenses Riv- It na. is evident Defendant 20, 1977, January b. On No. Cr. with the criminal era’s involvement Rivera was convicted Defendant justice him system has not deterred Rape the offense of the Second activity. from further criminal Degree, an which constitutes a offense has failed to d. Defendant B Act felony class as defined justice system. from criminal benefit 1972. The was commit- S.L.H. offense Rivera has demonstrat- e. Defendant ted on March 1976. At all relevant rights disregard ed total for the during proceedings, Defen- times these poor has a towards others and attitude represented dant coun- Rivera was law. sel.... 27, 1996, f. Rivera has demonstrat- c. No. 95- Defendant On June Cr. pattern criminality indi- Rivera was convicted ed Defendant that said likely IT IS ORDERED cates that to be recidivist FURTHER he concurrently. run conform his behavior to terms to he cannot requirement of the law. added). (Emphases g. quantity Due to the serious- Also on circuit November past ness Rivera’s convic- Defendant COLs, FOFs, its and order filed written of the tions the seriousness instant granting prosecution’s motion for extend- offenses, poses a Defendant Rivera seri- multiple of- imprisonment as a ed terms of communityU his ous threat to the fender, the circuit court wherein entered necessary long term for incarceration FOFs, COLS, following and order: relevant public. of the [cjourt finds 1. that Defendant consideration 3. Pursuant “multiple Rivera is a offender” within other HRS Sec factors 706-662(4)(a) meaning be- HRS Section [cjourt [(1993) ],[8] tion 706-606 fur for two cause has been sentenced he ther term sentences that extended finds felonies, to wit: need to be to reflect the serious Cr. No. 02-1-2128 offenses, promote respect of the to ness law, provide just punishment for the I: Count offenses, adequate afford deterrence Promoting Dangerous Drug in the conduct, public protect criminal (HRS 712-1243; Degree Third Section Rivera, crimes farther of Defendant felony) a class C provide Defendant Rivera needed ed Count II: training, ucational or vocational medical Drug Paraphernalia Unlawful Use care, or other treatment in the correctional (HRS 32íM3.5(a); class C Section most effective manner. felony) [cjourt above, this
4. Based on the fur- “per- finds ther Rivera is a Defendant Upon consideration of the nature offender”, eligible for sistent and the of the offenses circumstances (10) years imprisonment of terms of ten history and characteristics of Defendant Rivera, each class C offenses as mandated HRS Section [cjourt 606(1), 8,] I and II. Counts fur- supra note [see is a that Defendant Rivera ther finds ORDER “multiple whose commitment offender” pro- necessary for the terms ACCORDINGLY, IT HEREBY IS OR- follow- public tection of the because [prosecutionj’s DERED that Motion ing facts: Imprisonment For Extended Term Of Of be[,J his- a. Rivera’s criminal A same Defendant Persistent Offender is, tory eighty-two re- hereby granted. IT arrests IS FURTHER included (3) prior felony convic- sulting in three Rivera be sen- ORDERED Defendant tions addition to convictions imprison- tenced the extended terms *8 (27) misdemeanor, (10) petty twenty-seven years of for of class ment ten each I and and violations. felony II. misdemeanor C offenses Counts (c) public protect crimes provides: To 8. 706-606 from further defendant; and imposing Factors to be considered a sen- of (d) court, provide with needed determining particular the defendant The To tence. imposed, training, to be consider: medi- shall educational or vocational (1) care, The and circumstances of the of- nature treatment cal or other correctional history and the and characteristics of the manner; fense defendant; effective in the most available; (3) kinds of sentences The (2) imposed: The need for the sentence need to avoid unwarranted offense, (a) To of the reflect the seriousness disparities among rec- defendants with similar law, promote respect pro- for and to to vide guilty similar have been found ords who offense; just punishment for conduct. (b) adequate To deterrence to crimi- afford added). (Emphases conduct; nal 154 tiple offender,” eligible
b. Defendant Rivera has an for exten- extended terms history, years sive criminal characteristics of ten for each felony felony which involved convic- have the class C offenses in Counts I act Rape tion for violent and II. Degree separate and two
Second
Promoting
Dangerous
viction's for
ORDER
Drug
Degree.
in the Second
ACCORDINGLY, IT IS HEREBY OR-
criminality
Rivera’s
e.Defendant
has
[prosecution]’s
DERED that
Motion
being
despite
pe-
continued
sentenced to
Imprisonment
For Extended Terms Of
Of
probation
riods
both
and incarceration
be[,]
is,
Multiple
A
Offender
and the same
prior
in his
convictions.
the instant
,
hereby granted.
case,
found Defendant Rivera
IT IS FURTHER ORDERED that De-
guilty
possession
methamphet-
fendant
to
Rivera be sentenced
the extend-
amine, drug paraphernalia
marijua-
ed
terms of
of ten
It
na.
Defendant
evident
Riv-
each of the class C
offenses in
era’s
involvement with the criminal
Counts I and II.
justice system has not deterred him
IT IS FURTHER ORDERED that said
activity.
from further criminal
concurrently.
terms are to run
has,
d.
Rivera
Defendant
failed to
justice system.
added).
criminal
benefit from
(Emphases
e.
Rivera has
Defendánt
demonstrat-
2003,
4,
timely
On November
filed a
disregard
rights
ed a
total
appeal.
notice
poor
others
attitude towards
the law.
II. STANDARDS OF REVIEW
f. Defendant Rivera has demonstrat-
A. Sentencing
pattern
criminality
ed a
indi-
likely
cates that he is
to be a
recidivist
sentencing judge general
[A]
conform his
he cannot
behavior to
ly has
in imposing
broad discretion
requirement of
the law.
Gaylord,
sentence. State v.
78 Hawai'i
g.
quantity
127, 143-44,
to the
1167,
Due
serious-
P.2d
890
1183-84
past
(1996);
Valera,
ness of Defendant Rivera’s
424,
convic-
v.
74
State
Haw.
435,
376,
(1993).
tions and
the seriousness
the instant
848 P.2d
381 ...
offenses,
poses
Defendant Rivera
applicable
seri-
standard
review for sen
community!,]
ous threat
and his
tencing
resentencing
matters
long
necessary
term incarceration is
plain
whether the court committed
public.
manifest
of discretion in
abuse
its deci
Gaylord,
sion.
Hawai'i
890
Pursuant
consideration
1184;
Kumukau,
P.2d at
other
State
under HRS Sec-
factors
218, 227-28,
Haw.
8],
787 P.2d
tion
see
note
706-606[
(1990);
[cjourt
[,]
Murray
State v.
Haw.
extended term
further finds
(1980);
621 P.2d
State v.
sentences need to be
to reflect the
226, 231,
Fry,
offenses,
61 Haw.
602 P.2d
promote
seriousness
(1979).
law,
just
respect
provide
punishment
offenses,
adequate
for the
afford
deter-
State,
281, 284,
Keawe v.
Hawai'i
conduct,
protect
rence
criminal
(1995).
“[Factors which
public
crimes
plain
indicate a
and manifest abuse of dis-
fuHher
of Defendant
*9
Rivera,
provide
Defendant Rivera with
arbitrary
capricious
cretion are
or
action
or
training,
needed educational
vocational
judge
rigid
and a
refusal to consider
care,
medical
or other correctional treat-
Fry,
defendant’s contentions.”
61
“
ment in the most effective manner.
231,
And,
Haw.
'[gen-
at
155
disregarded
bounds of
or
in
reason
rules or
construe it
consistent
manner
principles
practice
purpose.
its
of law or
to the substan-
”
party litigant.’
tial
of a
detriment
doubt,
When there
doubleness of
Keawe,
284,
When
our foremost
when
affects substan
the error committed
”
obligation
give
rights
ascertain and
tial
effect
the defendant.’
State v.
Cordeiro,
390, 405,
legislature,
the intention
99 Hawai'i
P.3d
denied,
primarily
is to be obtained
reconsideration
Hawai'i
language
(quoting
contained
the statute itself.
58 P.3d
State v.
Jenkins,
87, 101,
statutory language
And we must read
93 Hawai'i
Cullen,
(quoting
the context
statute
entire
State v.
Hawai'i
*10
(1997))).
955,
right
by jury.
sixth
to trial
also
ed his
amendment
See
view,
Blakely analysis
HRPP
Procedure]
vis-a-vis
Rules of Penal
In our
the
[Hawai'i
(“Plain
52(b) (1993)
meaning of
Apprendi
Rule
error or defects
the
confined
the
affecting
rights may
noticed
“statutory
substantial
be
within
construct
maximum”
the
although they
brought
“guideline”
were
context
determinate
sen-
court”).
tencing
attention
Inasmuch as Hawaii’s
schemes.
ex-
sentencing
is indeter-
tended term
structure
Hauge,
at 141
103 Hawai'i
79 P.3d
minate,
Blakely
we
that
does not
believe
Matias,
(quoting
102 Hawai'i
State v.
analysis that
the “intrinsic-extrinsic”
(2003)).
affect
75 P.3d
court articulated Kaua.
this
III. DISCUSSION
majority
that
Blakely
explained
“the
Sentencing
Term
A. Hawaii’s Extended
‘statutory
Apprendi purposes
maximum’
Incompatible With The
Scheme Is Not
judge
maximum
im-
is the
Supreme
Deci-
United States
Court’s
solely
pose
the basis
on
facts reflected
Blakely Washington.
sion In
v.
jury
by
or admitted
verdict
defen-
-
at-,
dant.”
U.S.
argues
that
the United
words,
(emphasis
original). “In
other
Court’s recent decision
States
‘statutory maximum’ is not the max-
relevant
Blakely Washington
renders Hawaii’s ex
judge may impose
imum sentence a
after
sentencing
unconstitu
tended term
scheme
facts,
finding
but
maximum
additional
he
right to
tional insofar’ as it denied him his
may impose
any
without
additional facts.”
by
jury
imposing
trial
sen
extended term
original). Accordingly,
(emphasis
Id.
upon
by
based
facts found
the sentenc
tence
Apprendi
ie.,
any
that
oí
essential mandate
by
jury.
court but not
Rivera sub
—
prior
must
fact other than a
conviction
be
have
mits that
the cireúit court could not
beyond
jury
proved
submitted to a
his
based
terms
doubt —is unaffected
reasonable
solely
beyond
jury
on the facts that the
found
Blakely. Blakely can
Court’s decision
rea-
trial,
his
it was
a reasonable doubt at
because
construed,
then,
sonably
gloss
as a
be
on
posttrial
circuit
find
court that made the
clarifying
upward
Apprendi,
that the
limit
ing that
sentences were “nec
extended term
sentencing
any given presumptive
range
Riv
essary
public.”
for the
statutory
utilizing
prescribed in a
scheme
that,
‘public
propounds
inasmuch as “this
era
sentencing
system
“guideline”
“determinate”
pun
protection’ finding was ‘essential to the
“statutory
constitutes the
maximum”
received,
it had to made
[he]
ishment’
be
”
upon
that a
whom a sentence
ex-
jury
Apprendi
Blakely.
We dis
ceeding
“statutory
maximum”
agree.
procedural protections
is entitled to all of the
Blakely
perceived
on the
defects of
focused
Apprendi
articulates.
Washington
sentencing
state’s determinate
foregoing,
In connection
scheme, applying the rule the Court had
majority
Blakely
reasoned as follows:
i.e.,
Apprendi,
previously
crafted
that,
conviction,
argues
than
fact of a
Justice O’CONNOR
be-
“[o]ther
penalty
sentencing
schemes in-
fact
increases the
cause determinate
judicial
judi-
beyond
statutory
volving
factfinding
maxi-
less
prescribed
entail
crime
schemes,
jury,
cial
than
mum must
submitted to a
discretion
implies
Ap
constitutionality of
proved
doubt.”
the latter
a reasonable
Post,
constitutionality of
former.
rendi,
157
13,
holding,
sentencing
It
P.3d at
In
this
does not do so.
at
72
so
terminate
discretion,
sure,
judicial
but
increases
to be
court noted
expense
jury’s
traditional
not at the
fundamental distinction between
finding
function of
facts essential
predicate
facts described
nature
imposition
penalty.
lawful
Of course
(4),
706-662(1), (3),
§§
...
in
and
HRS
judicial
involve
indeterminate
schemes
hand,
in
one
and those described
on the
(like
factfinding,
parole
in that a judge
706-662(5)
(6),
§§
... on
and
HRS
board) may implicitly
on those facts
rule
Specifically,
facts at issue in
other.
important
of his
deems
to the exercise
he
sentencing
rendering an extended term
sentencing
But
facts do
discretion.
§§ 706-
determination
under HRS
pertain to whether
has a
not
the defendant
(3),
662(1),
implicate
and
consider-
right
legal
to a lesser sentence —and
completely
to the ele-
ations
“extrinsic”
judicial
all
as
makes
the difference insofar
which the de-
of the offense with
ments
upon
impingement
traditional role of
charged
was
which he
and of
fendant
jury is
concerned.
convicted;
they
accordingly,
should
was
at-,
(emphasis
124
at 2540
-U.S.
judge
by
sentencing
found
added). Thus,
Blakely majority’s
decla-
[,
with
v. Huelsman
[State
accordance
'J
ration that
indeterminate
does
(1979),]
its
588
and
60 Haw.
P.2d 394
jury’s
factfinding
abrogate the
traditional
pur-
at
progeny. The facts
issue
effectively
function
excises indeterminate
706-662(5)
(6),
§§
and
poses of HRS
sentencing schemes such as Hawaii’s from
are,
nature,
however,
by
very
“in-
their
analysis.
sixth
the decision’s
amendment
See
to the
with which the
trinsic”
offense
People
Claypool,
v.
Mich.
684
470
which he
charged
was
and of
defendant
(“[T]he majority
N.W.2d
convicted;
they
accordingly,
has been
[Blakely
did
] made clear that the decision
found
a reasonable
must be
sentencing sys-
not affect
doubt
of fact
order
trier
tems.”).
such,
analysis
As
Kaua
court’s
constitutional
afford the defendant his
vitality
respect
its
retains
Rivera’s
procedural
process and a
rights to
due
706-662(1)
present challenge
§§
and
HRS
by jury. Tafoya, Hawai'i at
trial
(4)(a)
disposes
of his claim that the cir-
Schroeder,
900-01;
P.2d at
imposing
cuit court erred
extended term
Apprendi, only statutory which addresses alia: “guideline” “determinate” schemes, ongoing does undermine the § 706-669 for Procedure determin-
viability of this court’s in Kaua. decision (1) imprisonment. minimum term of person When a has been sentenced to an term,
1. Hawaii’s indeterminate extended
indeterminate or
an extended term
sentencing scheme
imprisonment,
paroling
the Hawaii
au-
shall,
system
govern
our
thority
practicable
“Under
as soon as
but
ment,
power
appropriate
to
determine
no
than
later
six months after commit-
punishment
legis
for criminal acts lies
custody
ment to the
of the director
Bernades,
lative branch.”
department
State
71 Haw.
of social
and
services
485, 490,
(1990)
842,
(quoting
795 P.2d
845
housing
hearing,
hold a
on
the basis
Freitas,
State v.
61
hearing
fixing
Haw.
602 P.2d
make an order
(1979)).
914, 923
Hawai'i
utilizes mandato
imprisonment
minimum term of
to be
ry
scheme.
prisoner
See
served before the
shall become
Bemades,
Haw. at
eligible
parole.
ing authority authority years.191 the sole deter- For class C —5 provides: 9. HRS 706-660 now Sentence for class B Cand (or length Washington ten-year The minimum at 2537. codified 120-month) parol- shall Hawaii be determined maximum class B ing authority in accordance section Washington felonies Revised Code of (RCW) 706-669. 9A.20.021(l)(b). Nevertheless, Id. range” Apparently referring “presumptive guideline the amendments a class (1965), commentary forty-nine made Act B felony set between (1976) states, fifty-three HRS 706-660 inter alia: Id. months. at 2535. As noted *13 III.A, Blakely in Legislature In Section construed the enacted a law upward of designed judicially imposed presumptive guideline limit to end incon- range, imprisonment. ten-year sistent of and not the maximum sentences This sen- policy felony, as B “statutory true indeterminate tence for a class as the —known sentencing continued. The Blakely majority explained, court’s The maximum.” —is choosing discretion is limited between Apprendi, per- consistent with fact imprisonment and other modes of sen- mitting sentencing in upward excess tencing. has Once court decided to range limit of presumptive guideline imprisonment, sentence a felon to by must fact be found the trier of at trial by actual of is time release determined beyond a doubt. Id. at 2537. At reasonable parole Having authorities. decided on Blakely issue in was the fact the sen- imprisonment, the court must then im- tencing finding aggravating court’s of an pose the maximum term authorized.... i.e., that the had defendant acted with fact — [Footnotes omitted.] cruelty subjected deliberate the defendant — Id, 524-25, at 1357-59. to an Washington’s More- enhanced sentence under over, commentary scheme, sentencing guideline determinate footnote, contains a which states that “[i]t notwithstanding had not must, however, be remembered guilty in plea, admitted the fact nor had a grants court power impose Code found at trial it reasonable imprisonment” pursuant an extended of term doubt. lies Therein the distinction between (1993 Supp.2003).10 to HRS 706-661 & structure, sentencing Hawaii’s enhanced set 706-662, Washington’s forth in HRS and In contrast to Hawaii’s indeterminate sen- scheme, sentencing guideline tencing determinate scheme: Blakely issue in (1) Hawai'i, sentencing In Washington’s sentencing scheme inde- determinate struc- terminate, and, presumptive particularly, sentencing ture and there no court’s (2) imposition guideline thirty-seven range; of court a sentence months subjected fifty-three-month could not upward excess have the defendant to an statutorily imprisonment limit based on enumerated “standard term — at-, range.” Blakely, Blakely submitting U.S. same facts without felonies; ordinary felony may person terms. A who of a be to an extended has felony been convicted a class B or class C imprisonment. term of When may be sentence, sentenced to indeterminate term of ordering such the court shall im- imprisonment except provided for in as section pose length imprisonment the maximum relating 706-660.1 use firearms which as shall be follows: felony certain offenses and section 706-606.5 (1) degree For murder in the second —life relating repeat ordering When offenders. parole; possibility without sentence, impose such a the court shall (2) felony A For a class life —indeterminate length imprisonment maximum which shall imprisonment; term of be as follows: (3) felony class B For a —indeterminate felony years; B For a class For —-10 twenty-year imprisonment; term of felony years. C a class —5 For a class C ten- —indeterminate length imprisonment shall minimum be year imprisonment. term authority paroling determined the Hawaii length imprisonment The minimum accordance with section 706-669. (2), (3), [paragraphs] shall be deter- added). (Emphasis paroling authority mined the Hawaii provides: 10. HRS 706-661 accordance with section 706-669. felony; Sentence of ex- added.) (Emphases designated tended In the terms. cases sec- 706-662, person tion who has been convicted fact, which he to the offenses of facts to the because the extrinsic
those trier and, therefore, out- cruelty” presently been factor en- convicted aggravating of “deliberate factfinding purview jury’s “inextricably an “intrinsic” so en- side tailed fact function. actions in commit- meshed the defendant’s ting charged ... that the Hawai'i the offense Huelsman, two-step out a court set requires findings that these Constitution must process Kaua, 102 by the trier of fact[.]” made engage in order Tafoya, (quoting Hawai'i P.3d at P.2d at 398. 60 Haw. at sentence. 900-01). Hawai'i at 982 P.2d at step requires finding beyond a first within doubt that the defendant reasonable not err sen-
2. The circuit court did
particular
which the
class of offenders to
tencing
extended terms
Rivera to
applies.
Id. In
of HRS 706-662
subsection
persistent
sentencing court finds that
that the
the event
multiple offender.
persistent
*14
is a
offender under
defendant
(1)
under
multiple
or
offender
subsection
“It is settled that an extended term
(4),
step requires the
subsection
the second
sentencing hearing
separate criminal
is ‘a
sentencing court to
whether “the
apart
determine
proceeding
trial of the under
offense,’
for an extended
lying substantive
‘all rele
defendant’s commitment
wherein
pub-
necessary
protection of the
is
for
vant issues should
the state
term
be established
” Kaua,
lic.” Id.
beyond a
doubt.’
reasonable
9,
(quoting
Hawai'i at
HRS classic 706-660, of the four swpm in consideration supra see note 9. As noted dates para- provides part: payment § fine in accordance in relevant of 11. HRS 706-605 (b), graph payment restitution and the of disposition of convicted defen- Authorized priority compensation have fee shall (1) parts Except provided in II and dants. as fine; payment payment over the chapter IV of this or section 706-647 pay- priority over shall have restitution section and of this subsections fee; compensation or ment of subject applicable provisions of this (e)To community perform for the services Code, may a convicted the court sentence defen- supervision governmental under disposi- following to one or more dant agency or charitable or- or benevolent tions: community ganization service or other (a) placed probation as authorized To he supervisor; provid- group appropriate or by chapter; part II of this per- person who ed that the convicted (b) by part pay authorized III To a fine as be deemed services shall not forms such chapter; and section 706-624 of this governmental employee of the to be an (c) imprisoned for a term as author- To be any assigned agency work site for chapter; part ized IV of this per- persons purpose. All (d) in an amount To make restitution community shall be service form pay; provided appropriate defendant can afford to and assessed screened placement may agency restitution governmental the court order pursuant paid place- coordinating public to victims to section work to be service compen- the crime victim 706-646 or to ment as a condition sentence. special a defendant fund in the event that the not sentence sation The court shall except au- given probation as an award for com- victim has been and, chapter. by part II of this chapter thorized pensation if the under added). orders, restitution, (Emphases in addition to court objectives retribution/just penal punish- quirement sentencing court consider — ment, deterrence, incapacitation, and re- all the factors set forth HRS 706-606 habilitation^] determining particular when imposed. Gaylord, 78 Hawaii 890 P.2d at (footnotes omitted). and citations matter, present the circuit court 706-606(2)(c) Specifically, provides HRS required was first to consider the factors set court sentencing shall consider the forth in in imposing HRS a sen- “protect need tence; so, doing circuit obviously court public from further crimes the defen- determined that the indeterminate maximum dant!;.]” of imprisonment each Rivera’s 706-606(2)(e) penal felonies, HRS reflects the class probation, C rather than objective “incapacitation.” appropriate sentence. See Section Furthermore, I. expressly circuit Incapacitation simple is the idea FOFs, COLs, noted its written and orders rendering
restraint: the convicted of- granting prosecution’s motions for time, ex- incapable, period for a fender persistent tended terms of as a offending again. Whereas rehabilitation multiple that it had offender considered changing person’s involves habits or factors enumerated attitudes so or she he becomes less § 706-606 inclined, and had determined that extended criminally incapacitation pre- appropriate term sentences were “to Instead, order supposes change. no such ob- protect public from further interposed crimes” com- impede stacles are Thus, mitted Rivera. Id. the circuit court person’s carrying out whatever criminal determined 706-606 that inclinations or she he have. Usual- penal objective classic “incapacitation” ly, prison, the walls of a obstacle primacy took Rivera in but ineapaeitative techniques other goal order to accomplish rendering possible exile house arrest. —such him incapable offending again for the inde- Ashworth,] A. [A. von Hirsch and Princi- period terminate maximum of time. As the pled Sentencing 101 [ ]. For the *16 circuit court findings, demonstrated in its probably latest and most empiri- definitive analysis § such an HRS under 706-606 was study relationship cal of the between inca- the basis for prison its determination that for pacitation reduction, and crime see F. term, maximum indeterminate rather than Hawkins, Zimring Incapacitation and G. probation, was appropriate the sentence for (1995). Rivera. Gaylord, 78 at 148 n. Hawai'i 890 P.2d at Therefore, n. explained as this court Admittedly, sentencing imposition a court’s Gaylord, sentencing required courts are to of an requires extended term sentence the penal objectives consider four the classic “necessary em- determination that is pro- it for 706-606(2) §
bedded HRS imposing public.” § when tection of the HRS 706-662. sentence, any ordinary Nevertheless, for whether ex- such a determination .or is effec- present tively tended terms. Most relevant to our sentencing the same one that the court analysis, sentencing courts must upon concluding evaluate has the made that a defendant imposed “need the ... pro- [t]o sentence should be to an indeterminate for public tect the crimes the maximum imprisonment term of rather than farther 606(2)(e)(emphasis probation § “ordinary” HRS sentencing prin- defendant^.]” 706— added). Consequently, in ciples. justifies case sen- The factor that the enhance- tencing statutory a defendant to our prison ment to sentence terms, range” therefore, scheme’s “standard a class prior C felo- is the fact of or multi- ny, jury’s ple verdict alone authorizes a sen- convictions. See Almendarez-Tor probation five-year States, tence of or a either res v. inde- United 523 U.S. term of
terminate maximum
(noting
L.Ed.2d
§
traditional,
under HRS
and that
that
authoriza-
“recidivism ...
if
is
not the
jury’s
traditional,
tion
verdict includes the re- most
sentencing
basis
sentence”).
increasing
s
court
an offender’s
Apprendi,
senteneed. See
530 U.S. at
Thus,
sentencing judge acquires
au-
(reasoning
position regard to matter prosecution’s repeat motion offend with, to, directly contrary or inconsistent manda misstated Rivera’s er him, previously assumed at least one to both prison applied minimum tory with, had, chargeable full he or was where II, is not viewed I and to be “[e]rror Counts facts, knowledge of will be another ab purely in the [or] in isolation considered prejudiced by his action. 25 P.3d at Aplaca, 96 Hawaii stract.” *19 (citations omitted). 124, Marcos, 91, with Hawai'i 969 800 “Consistent Roxas v. 89 (1998) (citation omitted). doctrine, 1209, frequently we At error have 1242 harmless 8, light hearing prosecu- that error ‘must be examined 2003 on the stated the October given proceedings and the effect sentencing, tion’s motions for extended term of the entire 166 obligation
to which the
shows it is
cireuit
“an
whole record
enti-
court
had
mandatory
Id.
imprison-
tled.”’
minimum” term of
ment
706-606.5
under HRS
as a result
error,
case, impli-
The fact that
in this
promoting
his
dangerous
conviction of
[Riverajs
cates
and not his
I,
drug,
charged
as
in Count
had
viction does not render
harmless error
the.
imposed
very mandatory
fact
that
minimum
inapplicable.
contrary,
doctrine
To the
such,
in connection with Count I. As
hold
we
expressly
HRS 641-16
states that
(1) that
possibility
there is no
that
reasonable
order, judgment,
“[n]o
or sentence shall be
slip
tongue
the circuit
oral
court’s
of the
reversed or
unless
court
modified
is of
that
contributed
Rivera’s sentence and
opinion
was
committed
error
any resulting
beyond
was
error
harmless
injuriously
which
affected the substantial'
doubt.
reasonable
rights
appellant.” (Emphasis
add-
ed).
addition,
In
[Hawai‘i Rules of Penal
IV. CONCLUSION
(HRPP)
52,
pro-
]
Procedure
Rule
error, defect,
“[a]ny
irregulari-
vides that
foregoing analysis,
Based on the
we affirm
ty!!,]or
does not
variance which
affect sub-
conviction,
judgment
the circuit court’s
rights
disregarded!!,]”
stantial
shall be
sentences,
repeat
extended term
offend-
applicable
penal proceedings,
to all
includ-
er sentence.
added.)
(Emphasis
sentencing.
See
54(a) (2000) (“These
HRPP Rule
rules
J.,
by ACOBA,
Dissenting Opinion
apply
penal proceedings
shall
to all
in all
DUFFY, J., joins.
whom
courts
except
Hawaii
State
as
—
light Blakely
In
Washington,
v.
U.S.
(b)
rule.”).
provided in
subsection
2531,
-,
(2004),
124
159
S.Ct.
L.Ed.2d 403
Moreover,
Supreme
the United States
Kaua,
I
prior
believe our
decisions in State v.
Court has stated that most constitutional
1,
(2003),
102 Hawai'i
167 Adrian, (the court), State v. government action. See II. The first circuit court exercis- (1969) (hold- discretion, ing granted Haw. pursu- its the motions § that the (Supp.2002).4 confrontation clause of the Sixth ant to HRS 706-662 HRS applicable § Amendment to the states and provides part in relevant as fol- interpre- therefore the U.S. Court’s lows: provision upon tation of the is binding this impris- Criteria for extended terms of court). Applying Blakely import of plain onment. A defendant convicted be qualified, it is unless otherwise it would subject imprison- to an extended term of appear proce- “the State’s 706-661, the convict- ment under section if comply [in dure this ease] did ed one or more defendant satisfies — Amendment,” Blakely, Sixth U.S. at following criteria:
-, 2538, and, thus, the sen- persistent tence on is a Defendant-Appellant Lar- The defendant offend- invalid[,]” id., (Defendant) ry for an ex- imprisonment “is er whose necessary protec- tended term is the case should be remanded for resentenc- for Blakely ing.2 I forth public. ap- set as it tion rule The court shall plies majori- case first this and discuss the finding not make this unless the de- rationale, ty’s second. previously fendant has been convict- of two ed felonies committed at dif- times when the ferent defendant was I. eighteen years age or older. trial, Following Defendant I, Promoting Dangerous victed Count Drug in Degree, the Third Hawai'i Revised multiple is a The defendant offender (HRS) 712-1243; II, § Statutes Count Un- were so ex- actions whose criminal of Drug Paraphernalia,
lawful Use
imprison-
tensive that a sentence of
329-43.5(a);
III, Promoting
and Count
an
ment
extended term is neces-
for
Drug in
Degree,
Detrimental
the Third
sary
public.
712-1249,
except
all
C
class
felonies
finding
court shall not
The
make this
III,
petty
Count
which is a
misdemeanor.
unless:
Thus,
(1993),3
under HRS
the “or-
(a)
being
sentenced
dinary”
and “maximum”
as to
for two or more
is al-
felonies
II,
years,
Count I is five
as to Count
five
ready
imprison-
under sentence of
III,
years,
days.
thirty
and as to Count
Per-
felony[.]
ment
here, Plaintiff-Appellee
tinent
of Ha-
State
wai'i
moved
have Defendant
sentenced
added.)
(Emphases
imprisonment
an extended term of
as a mul-
tiple
persistent
offender and to
term of
Defendant
imprisonment
offender,
persistent
following
as a
offender
the court made the
“find-
ings
each of
class
I
C felonies
Counts
of fact”:
2. The United States District Court for the District
Sentence of
for class ... C
felonies;
Hawai'i,
ordinary
person
A
Mollway,
terms.
who has
Judge
Oki
Susan
has ar-
felony may
been
... class C
convicted of a
be
application Apprendi
rived
at a similar
Kaua
impris-
Frank,
F.Supp.2d
Civ. No.
sentence,
ordering
onment. ... When
such a
(D.Haw.
9, 2004).
(Emphases
Defendant
e.
[Defendant]
offender,
disregard
'rights
other and
multiple
as a
the court made the
tal
following “findings of fact”:
poor
toward the law.
has a
attitude
*22
[Defendant]
1.
finds that
The Court
pat-
demonstrated a
f.
has
[Defendant]
“multiple
meaning
within
a
offender”
criminality
that he
which indicates
tern of
706-662(4)(a)
he
of HRS Section
because
he can-
likely
be a recidivist in that
to
(2) felonies,
for two
to
has been sentenced
require-
to the
his behavior
confirm
wit:
ment
the latv.
No. 02-1-2128
Cr.
quantity and seriousness
g.
Due
I:
Count
past convictions
of [Defendant’s]
Drug in
Promoting
Dangerous
a
offenses,
of the instant
seriousness
[Defen-
(HRS
712-1243; Degree
Third
Section
the commu-
poses a serious threat to
dant]
felony)
class C
long term incarceration is
nity and his
II:
Count
protection
public.
necessary
Drug Paraphernalia
Unlawful Use of
oth-
to consideration
3. Pursuant
(HRS
32£M3.5(a); a class
fel-
Section
C
Section
factors under HRS
er
ony)
706-606,
further finds
the Court
Upon
2.
of the nature
consideration
im-
to be
term sentences need
and the
and circumstances of the offenses
of-
posed to reflect the seriousness
[Defendant],
history
and characteristics
law,
fenses,
pro-
respect for
to
promote
to
796-606(1),
as mandated
HRS Section
offenses,
just
punishment for the
vide
finds that
[Defendant]
further
Court
adequate
to criminal
afford
deterrence
“multiple
whose commitment
offender”
conduct,
protect
public from further
necessary for
terms is
[Defendant],
provide
crimes
Defen-
public
because
needed educational or
dant Rivera with
following facts:
care,
training,
or other
medical
vocational
history in-
criminal
a.
[Defendant’s]
treatment in the most
correctional
effective
(82)
resulting in
eighty-two
arrests
cludes
manner.
in addi-
prior
convictions
three
above,
this Court fur-
on the
twenty-seven
Based
convictions for
tion to
“multiple
misdemeanor,
is a
vio-
petty
[Defendant]
misdemeanor and
finds
ther
offender,”
eligible
lations.
terms
for extended
(10) years each
ten
crimi-
has an extensive
[Defendant]
b.
I and
felony offenses Counts
class C
of which
history,
nal
the characteristics
II.
Rape
felony conviction for
involved a
have
(2) separate
Degree and two
in the Second
added.)
(Emphases
Promoting
Dangerous
convictions
Degree.
Drug in the Second
attempts
distinguish
majority
grounds
on the
Blakely from this case
criminality has contin-
c.
[Defendant’s]
sentenc-
Blakely
“determinate”
addresses
periods
despite being
ued
sentenc-
ing,
opposed to an indeterminate
in his
probation and incarceration
both
case,
scheme, majority opinion
102 P.3d
In the instant
ing
convictions.
guilty
possession
jury
Blakely
a fact
[Defendant]
found
concerned
drug paraphernalia
methamphetamine,
(a
cruelty”)
of “deliberate
determination
marijuana.
is evident that
It
“intrinsic”
jurisdiction
[Defen-
would be
in our
rvith the crimi-
'prior involvement
dant’s]
sentencing paradigm
charge under our
to a
not deterred him
justice system has
nal
and “extrinsic”
distinguishing “intrinsic”
activity.
criminal
and, hence,
by our
would be decided
from further
facts
accept-
respect, juries,
With all due
id.
d.
[Defendant]
benefit
failed
Blakely
majority in
language of the
justice system.
the criminal
value,
original).
I
(emphasis
do not believe that
Id.
face
defendant.”
Consequently,
parsed
narrowly.5
can be
so
decision
“statutory
is not
maximum”
may impose
judge
maximum sentence
II.
facts,
finding
maxi-
after
additional
but the
Blakely,
“second-degree kidnaping
may impose
mum
without
addition-
he
felony”
punishable
class B
“a term
[was] a
findings.
judge
punish-
When
al
inflicts
years”
Washington
stat-
of ten
jury’s
ment that
verdict alone does not
—
-,
U.S. at
at 2535.
ute.
allow,
has not
all
found
facts
however,
Sentencing guidelines,
established
pun-
law
ivhich the
makes essential to
*23
range’
“a ‘standard
of 49 to 53 months” of
ishment,
judge
proper
and the
exceeds his
imprisonment “for
... offense of
[the]
sec-
authority.
Id,
ond-degree kidnaping with
firearm.”
original
(emphasis
emphasis
Id.
add-
plea agreement,
to [a]
“Pursuant
the State
ed) (internal quotation
citation
marks and
Washington]
[of
recommended
sentence
omitted).
Supreme
The
Court indicated that
range
the standard
of 49 to 53
within
judge in
not
“[t]he
this case
could
have
[then]
However,
rejected
judge
Id.
months.”
“the
imposed
exceptional
the
90-month sentence
imposed
State’s recommendation and
an
the
solely on
basis of
the facts admitted
exceptional
months —37
sentence
90
guilty plea[
justify an
]”
because “to
ex-
beyond the
Id.
months
standard maximum.”
ceptional sentence ...
factors
than
other
law,
Washington
judge may im-
“[a]
Under
computing
which are used in
the stan-
those
pose
range if
a sentence above the standard
range
dard
sentence for the
must be
offense”
compelling
he finds substantial and
reasons
(internal quota-
“take[n] into
Id.
account[.]”
Id, (in-
justifying
exceptional
sentence.”
omitted).
tion marks and citation
fact
The
omitted).
quotation marks and citation
ternal
arriving
that discretion is
at
exercised
“justified
judge
on
the sentence
sentence is not
inas-
enhanced
determinative
ground
petitioner
had acted
‘delib-
judge
judg-
much as the
“cannot make that
cruelty,’
statutorily
enumerated
erate
finding
support
ment without
it
some facts to
ground
departure”
'for
from the standard
beyond the bare elements of the offense.”
range.
hearing,
judge
Id.
aAfter
“issued
Hence,
judicially
“[w]hether
Id.
deter-
findings
support
32
of fact” in
of his sen-
require
mined facts
a sentence enhancement
Id.
tence.
it,
merely
allow
not
the verdict alone does
(emphases
authorize
sentence.”
Id.
Supreme
The United States
Court “re-
Thus,
original).
judgment.
that “[t]he
versed” the
It noted
“
acceptable
do not afford an
supporting
finding”
answer[ ]
labels
facts
‘deliberate
”
...
...
by
constitutionally
novel and
cruelty’
petition-
“were neither admitted
-,
distinction
by
elusive
between “elements”
jury.”
found
er nor
Id. at
“sentencing
rejected
factors[ ]” [because]
2537. It
S.Ct. at
conten-
State’s
form,
inquiry is not
but
relevant
Apprendi
tion “that there was no
violation
required
expose
finding
‘statutory
the relevant
maximum’ is
because
effect—does
greater punishment
to a
months,
10-year
not
but
maximum
by
guilty
than that authorized
jury’s
B felonies[.]”
class
Id. The Court made clear
verdict?
‘statutory
Apprendi
“that the
maximum’
purposes
judge
the maximum
Apprendi,
on the
III.
required
supplemental
it was
find-
make
ings justifying a sentence double that which
“ordinary”
this ease
“maximum”
could
authorized
under the
verdict.
term for each of the offenses under Counts I
case,
Consequently,
the instant
“the ver-
years’ imprisonment.
and II is five
dict
[did]
alone
authorize the sentence.”
706-660(2);
Upon
see
convic-
note
Id.
judge
punishment
But
inflicts
“[w]hen
then,
tion,
years’ imprisonment
five
would be
allow,
jury’s
that the
verdict alone does not
maximum,”
statutory
“prescribed
Blake-
*24
jury
the
has not found all the facts ‘which the
(inter-
at-,
ly,
124
at 2536
-U.S.
S.Ct.
punishment’
law
...
makes essential to the
omitted),
nal quotation marks and citation
judge
proper authority,”
and the
exceeds his
years
the crime involved because five
is “the
id., and the sentence must be vacated.
a [judge]
impose
maximum [sentence]
any
at-,
findings,”
without
additional
id.
IV.
(emphasis
124
at
in original).
S.Ct.
2537
An
Although Blakely concerned a “determi-
extended sentence under HRS
scheme,
sentencing
Supreme
nate”
the
Court
beyond
an
“describe[s]
increase
the maxi-
nowhere limited the
Amendment’s
Sixth
sentence,” i.e.,
statutory
mum authorized
be-
Blakely
only
approaches.7
reach
to
such
yond
imposed simply
one that can
on
the
Thus,
may gen-
sentencing
that our
structure
verdict,
jury
“is
and thus
the functional
erally
an
be denominated
“indeterminate”
equivalent of an
greater
element of a
of-
distinguishing Blakely.
is
basis
one
not a
by
jury’s
fense” that was not “covered
the
in-
Contrasting
sentencing from
determinate
guilty
Apprendi, 530
at 496
verdict.”
U.S.
n.
sentencing
response
Jus-
determinate
to
19,
ment.
VI.
analogy,
Even outside that
the manifest
then,
begs
question,
Appren-
It
find
the
hearing
purpose of the
term
con-
extended
inapplicable on the
that an
di
basis
extended
enlarge
ducted
was to
here
the indeterminate
hearing
“step” procedure,
is a two
sentence
years
of five
to ten
on each of
sentence
requiring
first
II.
Counts I and
Insofar as
term
finding
a
doubt
reasonable
ordinary
is
in addition to the
inde-
offender,
a multiple
the defendant
jury’s
by
authorized
terminate sentence
finding may not be made unless the defen-
verdict,
not fall
does
being
for two or more
dant is
judge
within
maximum
sentence a
felony
or is under
for a
felonies
impose by
guilty
virtue
verdict. Conse-
and the maximum terms
quently,
respect
to extended sentences
for the
crimes met
authorized
defendant’s
sentencing struc-
under our “indeterminate”
second[,]
requisites[
...
]
[and the]
certain
ture,
required finding[s by
court]
“the
...
determine whether
defendant’s
expose
greater punish-
to a
the defendant
for an
is nec-
commitment
extended term
by
jury
ment than that authorized
ver-
essary
protection
publie[,]
for the
494,120
at
dict[.]” Id.
S.Ct. 2348.
subject
dealing]
with the
[the latter]
ordinary sentencing[,]
matter of
V.
(inter-
Kaua,
9,
Blakely,
“peti-
That
102
at
72 P.3d
481
judge
found the
Hawai'i
at
omitted).
cruelty,’”
quotation marks
citations
tioner had acted with
nal
‘deliberate
at-,
only
dispos-
not
id.
at
was not
The criteria for extended terms rest
S.Ct.
not
on
foundational facts as
felonies
itive
that case and does
afford basis
sentences,
majority in favor of a focus on “the effect”
pending
past
see HRS
finding and
on such facts as
court’s ultimate
supra,
but also
that an
such a
support
question
would
the determination
ex-
to the
whether
the answer
particular
greater
in the
case
neces-
“finding expose[s]
tended term
the defendant to
sary
public.
Be-
by
for the
punishment
than
authorized
subsidiary
required
facts are
cause such
Id.
record
jury’s guilty verdict[.]”
On the
prescribed foundational ones
addition to the
case,
affirma-
would be
the answer
finding,
findings
see
to arrive at the ultimate
Court,
it
tive. As indicated
court,
supra,
subsidiary facts or
these
brought
court’s
about
is the “effect”
findings”
“additional
are “essential
rather than the
action that
determinative
—
——,
Blakely,
at
punishment,”
U.S.
sentencing proce-
“labels” attached
result,
must
found
and as
S.Ct.
“a
Id. This case involves
dures.
doubt, id.,
by jury beyond reasonable
greater
than what state law authorized
subject
merely
as
matter of
treated
“the
—
Blakely,
alone.”
the basis
the verdict
Kaua,
ordinary sentencing[,]”
102 Hawai'i at
at-,
at 2538. Inasmuch
S.Ct.
U.S.
Carvalho,
(quoting
(Emphasis § 10. HRS 706-622 states as follows: 706-620, "Authority § 9.HRS entitled to with- imprisonment,” hold sentence of states as fol- Requirement probation; exception. lows: person When a who has been convicted aof felony imprisonment, is not sentenced to A who has been convicted defendant place person probation. court shall probation crime be sentenced to a term of Nothing prohibit pan in this shall the court unless: suspending imposed upon degree The crime is sentence first or second murder from persons attempted degree or der; or convicted of a crime other first second mur- than a felony. felony, added.) except (Emphasis The crime is a class A Aclass IV, chapter part felonies defined in 707-702; section 11. See note 3. section, 'provided in Accordingly, sentences it “the determination that is when compared to the extended sentences ‘necessary protection public[,]’ of the subsequent authorized in sections seek to 662[,]” § is decidedly HRS “effec- 706— explicit achieve the recommended tively sentencing the same differen- one tiation. upon concluding has made defendant 2.5.) § (Quoting (Ellipsis ABA Standards should be sentenced to an indeterminate (Footnote points original.) and brackets in maximum term of rather than omitted.) Hence, in “subsequent sec- probation[,]” majority as the contends. Ma- to, 706-661, tions” § such referred as HRS opinion jority at P.3d at This felony term[ ]” “extended for a class is C misapprehension contextual of the standard 706-661(4) years, (Supp. § set ten HRS in fallacy majority’s leads to the conclu- 2003).12 applied term That would be on con- §§ sion as both that “inasmuch 706-606 HRS viction of a class C those cases require and 706-662 the determination of designated where, § in HRS imposed is whether sentence needed to here, persistent the court finds a protect public, determining the sole fac- offender, 706-662(1), § multiple or HRS remaining penalty tor that increases un- offender, 706-662(4). §HRS sentencing Hawaii’s der extended term term, then, An is intended § prior fact HRS “explicitly] differentiat[e],” commentary to viction, expressly ... ... Ap- authorized 706-660, cases,” id., § “exceptional prendi again Blakelyl [and simi- ] “ordinary” indeterminate terms that determination, larly multiple t]he offender 706-660, § are set forth in HRS for “most 706-662(4)(a), pursuant § to HRS mirrors Thus, offenses.” in contrast with HRS exception Apprendil.T conviction 706-606, § which treats 162-63,102 Majority opinion 1060- public as among consideration one others (emphasis in original). generally guiding court as to ordinary whether to sentence code, then, penal our Under there is a an- under HRS or choosing substantial difference between be- other proba- alternative such as probation ordinary tween and the indetermi- sentence, or a suspended tion sentence, nate and between an indeterminate 662(1) upon focus protec- whether the and an extended For sentence sentence. public beyond tion warrants a term Blakely, purposes Apprendi dis- then, ordinary Generally, pro- sentence. apparent tinction even more inasmuch public tection of factor HRS 706-606 category, as in the both former a sentence of among one several considerations in decid- probation or an sentence indeterminate ing whether to a defendant to an verdict, jury authorized in the latter ordinary imprisonment term under HRS only category suspension probation 706-660 or sen- (and sentence) legiti- not the can tence, as contrasted to HRS mately product be of a verdict. question proteo which the is not whether the prison public tion warrants term
not, requires length but it whether VIII. served to be which would premise major- majority second mistaken is the ease[s].” in “the vast *28 Commentary ity’s § circuit proposition “[h]ad to HRS 706-660. the court § 12. HRS states as follows: felony-indeterminate imprisonment felony; ten-year ex- Sentence For a class C designated tended terms. tion In the cases in sec- imprisonment. term of 706-662, person has who been convicted length imprisonment The minimum of a be sentenced an extended [paragraph] shall be determined the imprisonment. indeterminate term of When authority paroling Hawaii in accordance with sentence, ordering such a the court shall im- section 706-669. pose length imprisonment the maximum shall as follows: who im- in eases. defendant same both Rivera to consecutive terms II, faces a must an extended sentence prisonment I and the effect serve Counts ten-year greater HPA minimum sentence determina- would have been a than defendant who must serve imprisonment, a term the maximum term of tion13 terms, both equal ten-year even when sentences two concurrent extend- consecutive quantitatively equal. imprisonment circuit ed terms of are case[,]” and, actually imposed in this court setting a defendant’s minimum sen- When thus, logic that the circuit court “[i]t defies tence, “aggravating” the HPA six considers sentence, ten-year could ... same “may weight be accorded factors that comprised 'five-year two inde- consecutive im- longer minimum sentence of favor of terms, ordinary terminate maximum under including the “inmate prisonment!!,]” whether sentencing principles, run of Blake- but afoul criminal, persistent offender, professional is a ten-year ly by imposing concurrent extended dangerous multiple offender, or of- person, imprisonment[.]” Majority opinion terms of against elderly, handicapped or fender (emphases origi- at 1062 minor, period extended and sentenced to an nal). imprisonment.”14 Hawaii Administrative (HAR) (emphas- § Obviously, not De- Rules the court did 23-700-25© added). Thus, two ordinary five-year pris- a sentence of fendant to serve es unlike terms, I, five-year ordi- on term in Count consecutive consecutive ten-year to run concur- nary five-year prison II. And two extended term Count terms just higher clearly rently exposes it do so as had the discretion to Moreover, § minimum because the 706-668.5. See also note sentence. HRS 706-668.5(1) “[mjulti- “prisoner’s HPA criminal his- § 3. directs that considers HRS determining mini- ple imposed tory at the and character” terms § concurrently imprisonment, same run the court mum term of time unless 669(8) 706-668.5(2) (1993), orders,” prior it is and HRS free consider states 23-700-23(a) determining HAR “[t]he court terms. See whether (requiring HPA to the “nature terms to be to run consider ordered concurrently consecutively, offense and the shall consider and circumstances inmate”) history the factors set 706-606.” and characteristics forth section Establishing prosecution and Minimum That both the court be- and Guidelines Paroling Imprisonment, Hawaii imposition prison lieved of consecutive terms Terms of 1989) (establishing Authority (July one appropriate I II was under Counts guidelines majority’s in the infirmity of areas focus” underscores the “three ” history (empha- argument. is “the offender’s criminal added)). a defendant who sis Should per- parties apparently be convicted of served an extended term ceived what be manifest —that there should future, HPA would another crime is a two ordi- substantial difference between part consider extended term nary consecutively five-year terms served history.” “criminal The ef- the defendant’s ten-year terms two extended served fect, then, is that the defendant currently. The fact that the two consecutive on his record faces or her extended term five-year a ten-year terms amount to indeter- greater consequences than the defendant ten-year two minate term merely terms. who serves consecutive concurrently, terms run does not mean that Therefore, actually year such “ten sentences” are the minimum terms to be served as majority main- authority in fact same” as the paroling set would be the not “the authority which shall take into account both HRS 706-669 vests the HPA with sentences to fix "the minimum to be degree prisoner of the offense of the nature and eligible prisoner shall served before become history prisoner's and charac- and the criminal 706-669(1) (1993). parole.” 706-669(8) (1993) (emphasis add- ter.” HRS ed). *29 authority guide- HPA has "establish 14. minimum lines for the uniform determination of defense, prosecution, tains. and the not, accurately perceived they
as should this court. Because the court did hypothetical and not extended terms terms,
five-year consecutive such extend- only findings
ed could terms verdict, covered
Blakely resentencing would mandate a in this
case.
STATE of ELENEKI, Defendant-Appellant.
Jasmine
No. Court Hawai'i. 22, 2004.
Dec.