Monday, November 12, 2007

For Mandatory Min., Priors Presumed Valid Unless Challenged.

State v. Heggland (ICA Nov. 8, 2007)

Discussed and Partly Overruled.

Background. Heggland pleaded guilty to Promoting a Dangerous Drug in the 3d Degree, HRS § 712-1243(1), and committing Prohibited Acts relating to Drug Paraphernalia, HRS § 329-43.5. The State sought a mandatory minimum term under HRS § 706-606.5 on the grounds that Heggland committed his promoting offense while on parole from a Colorado felony conviction. Thus, he was a "repeat offender" who committed the drug offense within the "max. term of imprisonment possible after a prior felony conviction." The State offered documents showing Heggland's prior conviction. Heggland even stipulated to having committed the drug offense in Hawai'i while he was on parole for the Colorado conviction. The circuit court denied the motion, however, because the State failed to show that Heggland had been represented by counsel or waived his right to counsel at the time of his Colorado conviction. The State appealed.

Prior Convictions Must've Been Counseled or the Right to Counsel Must've Been Waived Before They May Be Used at Sentencing. In 1979 the HSC held that before the sentencing court imposes the mand'y min., the defendant must be given reasonable notice, must be given a hearing, and the prior conviction must be est. by satisfactory evidence that he or she was represented by counsel or waived the right to counsel at the time the prior conviction was imposed. State v. Freitas, 61 Haw. 262 (1979), State v. Afong, 61 Haw. 281 (1979), and State v. Caldeira, 61 Haw. 285 (1979). The Afong rule, as it came to be known, came into conflict with the later innovation of presentencing reports, which typically includes a list of prior convictions, but fails to indicate whether the defendant had counsel or waived the right to counsel.

Sentencing in Five Easy Steps? The ICA later ruled that while the defendant does not bear the burden of proof in these matters, he or she must challenge the validity of the prior convictions. In State v. Sinagoga, 81 Hawai'i 421 (App. 1996), the ICA held that in ordinary sentencing situations, including mand'y mins., once the sentencing judge is apprised prior convictions (usu. in the form of a presentencing report), it is up to the defendant to bring a good-faith challenge on the record that the criminal conviction was not counseled or was not against the defendant at all. The Sinagoga court laid out five steps in "ordinary sentencing procedures." The HSC adopted these steps by reference in State v. Mitsuda, 86 Hawai'i 37 (1997).

First, the sentencing court must give copies to the parties of the presentencing report and any other report about the deft's priors.

Second, the deft can then contend that any prior was w/o counsel or was not entered against him by stating on the record why the prior cannot be used. This is the good-faith challenge.

Third, before imposing sentencing, the sentencing court must inform the deft that each prior that is not challenged is presumed to be w/o defect and that good-faith challenges cannot be brought once the sentence has been imposed absent good cause.

Fourth, if a prior is challenged, the court must decide before imposing the sentence, whether the State met its burden of proof to the "reasonable satisfaction" of the court by showing that the prior is w/o defect (i.e. was in fact counseled, deft waived the right to counsel, or the prior was in fact entered against the deft). The Hawaii Rules of Evidence apply.

Fifth, if the sentencing court is aware that the prior was w/o counsel or wrongly entered against the deft, it cannot impose a sentence until stating on the record that the defective sentences were not considered as a basis for the sentence.

Without a Sinagoga Challenge, the Afong Rule is Not Implicated. The ICA held that Heggland failed to challenge the validity of his Colorado conviction. In other words, he did not, after receiving a copy of the presentence report, but before being sentenced, object to the use of those priors listed in the report on the grounds that they fail to show that he had not been counseled, that he waived his right to counsel, or that they had been entered wrongly against him. Because he failed to challenge the validity of the priors listed against him, the State was not obligated to prove show that the priors were from the strictures of Afong. The ICA also noted that Heggland stipulated to the prior conviction and that at the time he committed his Hawai'i offense, he was still on parole from that prior.

Priors for Mand'y Min. Purposes Must be Timely. Heggland also opposed the mand'y min. on the grounds that his Hawai'i conviction was not close enough to fall w/in the time frame of HRS § 706-606.5(f) (to impose the mand'y min., the offense must have been committed "within the maximum term of imprisonment possible after a prior felony offense from another jurisdiction."). In other words, for a prior to go to the imposition of the mand'y min., the new offense must have been committed w/in the maximum prison term carried over by the prior conviction. The ICA examined the statutory maximum under Colorado law, which requires mandatory parole for some offenses even when the defendant serves his or her entire prison sentence. The ICA held that because it was undisputed that Heggland was still serving his mandatory parole under Colorado law and because parole is not a new sentence but an extension of the old one, his Hawai'i offense had been committed w/in the maximum term of imprisonment.

Can A Defendant Challenge, AND Stipulate? The ICA, per curiam, vacated/remanded this case because the State did not have to show the priors were invalid unless the defendant challenged them in the first place. What's curious is none of the prior case law addresses the issue of stipulating to the existence of the prior conviction. Nevertheless, the ICA noted several times that Heggland stipulated to the Colorado conviction. The case law suggests that if Heggland made the good-faith challenge and objected to the validity of the prior, that would be enough under Sinagoga and thus the burden of proof would fall squarely onto the State to show that the prior is adequate. Practically speaking, this could be damaging for the defendant when the State brings out a bunch of nasty facts from the defendant's past. The ideal solution calls for Heggland to stipulate to the existence of the prior conviction, but still make a good-faith challenge that he was not counseled when he was convicted.

It could even be enough to simply say on the record that the defendant is raising a "Sinagoga challenge" on the grounds that the State has not shown he had counsel or that he had waived his right to counsel, but this is still risky business. After all, showing that the defendant was counseled or that he waived the right to counsel could be a piece of cake. It may just take a few phone calls, a court document from another State, or even the telephonic testimony of an unwilling public defender for the State to show to a "reasonable satisfaction" that the prior is just fine. Perhaps the better method of attack for the defendant, at least on appeal, would be alleging error from the third step in Sinagoga--that the sentencing court failed to inform the defendant before imposing sentence that he has to make the good-faith challenge. This seems to put the duty on the sentencing court. A sly prosecutor may also consider reminding the sentencing court about this duty to inform given how easy it may be to drag out bad facts relating to the prior and how it easy it might be to prove that the prior is w/o defect by a "reasonable satisfaction."

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