Friday, October 12, 2007

Extended sentencing: partly extrinsic, partly intrinsic, all unconstitutional.

State v. Maugaotega (HSC Oct. 1, 2007)

Background. Arising from five separate cases, Maugaotega was convicted of 22 counts ranging from attempted murder to robbery to sex assault to promoting drugs. The State filed five separate motions for extended terms of imprisonment pursuant to HRS §§706-662 and 706-661. At a sentencing hearing, the circuit court concluded that Maugaotega was a "multiple offender" and that his "criminal actions were so extensive that the sentence of imprisonment for an extended term is necessary for the protection of the public." The sentencing court granted the State's motions and sentenced Maugaotega to life.

On appeal Maugaotega argued that the sentencing court's findings violated his Sixth Am. rights based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). The HSC rejected his arguments, and affirmed. Maugaotega then petitioned cert. to the US Supreme Court, and in 2007 cert. was granted. The high court vacated the HSC's opinion and remanded the matter back to the HSC for reconsideration in light of Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856 (2007).

Hawai'i's intrinsic/extrinsic-factor analysis is bad law. For years, our jurisdiction justified extended sentences based on a distinction of intrinsic and extrinsic factors. Factors "intrinsic to the offense charged" are "contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense" and thus, had to be proven beyond a reasonable doubt by the trier of fact. "Extrinsic" factors, on the other hand, "are separable from the offense itself and involve consideration of collateral events or information." The various factors laid out in HRS § 706-662 were extrinsic or intrinsic were answered by appellate courts in piecemeal fashion. This scheme did not, according to the HSC, offend Apprendi and progeny (i.e. any fact, not including a prior conviction, may be used by the sentencing court to extend sentence beyond the statutory max. unless proven by the trier of fact beyond a reasonable doubt.) . Now, however, the US Supreme Court in Cunningham v. California has "nailed down the proposition that 'facts' included any findings of fact made by a judge -- even those pertaining to matters within the traditional sphere of judicial sentencing discretion -- that were prerequisites to the imposition of an extended sentence term."

Extended sentencing statute unconstitutional. Because "(1) HRS §706-662, in all of its manifestations, authorizes the sentencing court to extent a defendant's sentence beyond the 'standard term' authorized solely by the jury's verdict[,] (2) by requiring the sentencing court, rather than the trier of fact, to make an additional necessity finding that (3) does not fall under Apprendi's prior-or-concurrent-convictions exception, [the HSC held] that the statute is unconstitutional on its face." The HSC turned to legislative attempts to save extended-term sentencing with Act 230, but concluded that it would not survive in light of Cunningham. The HSC projected that the Cunningham court would "obviously characterize any extended term sentence based upon a sentencing court's necessity finding -- regardless of the particular statutory source of that finding -- as an unconstitutional denigration of the jury's role, because such a system would be deemed to allocate to judges sole authority to find facts permitting the imposition of an upper term sentence, [thus] violating the Sixth Amendment."

No special jury for sentencing. The HSC declined to exercise its inherent power to have a jury empanelled to find any of the facts needed to extend a defendant's sentence beyond the statutory maximum based on the legislative intent behind Act 230, where the legislature sought to preserve the power to extend sentences to the judge, and not a jury. Instead the HSC remanded the case for resentencing.

Justice Acoba's Dissent. Justice Acoba dissented on the grounds that it was improper to rely on United States v. Booker, __ U.S. ___, 125 S.Ct. 738 (2005) because neither party cited it, and, more importantly, because the case does not raise the issues discussed in Booker -- whether the United States Sentencing Guidelines violated the Sixth Amendment; and, if so, whether those guidelines would be inapplicable. Justice Acoba would instead have vacated the extended terms and remand for resentencing based on Apprendi. Justice Duffy joined in this opinion.

The million-dollar question. After the US Sup. Ct. blew the wind from the sails of the intrinsic/extrinsic distinction, it was only a matter of time before extended-term sentencing would be found unconstitutional and, thus, extended-term sentences unlawful. As a result, there have not been too many extended-term sentences these days. As a matter of fact, the prosecution has avoided this mess--whether it be an intrinsic/extrinsic factor or a Six Amendment violation--by recommending consecutive sentences against the defendant who has been convicted of several offenses.

Perhaps the most important question hovering about is whether Maugaotega applies retroactively to those carrying out their extended-term sentences. By now, inmates across the State (and inmates transported to the mainland) are reading up on their favorite Hawai'i Rule of Penal Procedure, Rule 40.

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