Thursday, November 1, 2007

The Triumphant Return of Extended Sentencing

2007 Haw. Session Laws (Special Session) HB No. 2 (October 31, 2007)
The Legislature Strikes Back. Earlier this month, by order of the US Sup. Ct., the HSC, in State v. Maugaotega, held that the extended sentencing statutes violated the Sixth Amendment. The court found the law unconstitutional and refused to order the empanelling of a jury to sentence Miti Maugaotega on the grounds that the legislature intended to keep sentencing matters w/in the discretion of the court. Hmm. Following the heels of the Superferry-Bail-Out bill, the Legislature amended HRS §§ 706-661, -662, and -664 because the HSC "declined to exercise its inherent judicial power to order on remand that a jury be empanelled."

Upping the Ante. Extended sentencing is available only when the defendant has been convicted of a felony. For murder in the 2d, the sentence is upped to life w/o parole; class A felonies are upped to life; class Bs upped to 20 years; and class Cs for 10 years. The sentencing court orders the maximum, and the Hawai'i Paroling Authority sets the minimum, just like before. HRS § 706-661.

Fax fo' da Max. The extended terms in HRS § 706-661 can only be imposed "if it is proven beyond reasonable doubt that an extended term of imprisonment is necessary for the protection of the public and that" the defendant falls under one of six types of really bad persons: (1) the persistent offender (has 2 or more felonies); (2) the "professional criminal"; (3) the "dangerous person"; (4) the "multiple offender"; (5) the offender's certain crime is "against the elderly, handicapped, or a minor"; or (6) the offender committed a hate crime. All six have special meanings defined by HRS § 706-662.

Enter the Jury. First, the defendant has the "right to hear and controvert the evidence against [him/her] and to offer evidence upon the issue before a jury; provided that the defendant may waive the right to a jury determination under this section, in which case the determination shall be made by the court." HRS § 706-664.

This ushers in a slew of yet-to-be-answered questions. How does one instruct a sentencing jury? Is this jury the same one that heard the facts leading to the defendant's conviction? It does not necessarily have to be. Can a defendant waive the right to a jury at trial, but preserve the right to a sentencing jury? What about the other way around? That leads to interesting places. Though the language of the law does not suggest it, the right to have a jury hear extended sentencing matters is the same constitutional right to have a jury trial. Can a defendant waive part of the same right? If the statute bifurcates it, as it did here, then perhaps so. Then again, is the sentencing jury really the constitutional right, or is it the legislative attempt to remedy the constitutional violation stemming from Apprendi?

A New Notice Requirement In Town. A close reading of HRS § 706-664 shows that either the prosecutor upon motion or the court can bring forth extended sentencing. In such a case, notice of the intention to bring extended terms must be brought w/in 30 days of the arraignment. Moreover, only the prosecutor can make a good cause argument for the 30 days (and not the judge, who is bound to the 30-day period). The 30-day pd. can also be waived or stipulated.

Once facts found, discretion goes back to the sentencing court. Finally, as a last surprise, the actual imposition of the extended sentence after the jury found BRD that the defendant should be subjected to the extended sentence is left to the discretion of the sentencing court! HRS § 706-662 provides that the sentencing court "may" impose the harsher term after the factfinder makes its necessary findings. This could be the traditional discretion afforded to sentencing judges after all. This discretion to impose the sentence makes sense. Once the jury has found BRD facts used to go beyond the statutory maximum the constitutional problem is resolved, and the judge is free to determine whether to impose or not. In fact, it is possible that the sentencing process could start all over again once the sentencing jury renders its findings. That would stretch things out quite a bit, huh? This also shows that the Legislature's intention to keep sentencing discretion within the ambit of the judge is consistent with the judicial restraint by the HSC.

Night of the Living Dead Letter. Finally, there's the retroactivity debacle. It is only appropriate to have this law enacted on Halloween 2007. Rising from the graveyard of unconstitutional laws comes now section five of the the extended sentencing law. In addition to having this new law apply to sentences pending during or commencing after the time of enactment--October 31, 2007--prosecutors have discretion to resentence defendants whose extended terms were set aside or deemed invalid based on older, unconstitutional laws. The public defender's office is ready to mount a challenge for this one. For their clients, Oct. 31, 2007 is a scary day indeed.

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