Saturday, November 24, 2007

Stopping SOTP

State v. Holt (ICA November 21, 2007)

Background. Duke Holt was charged with Harassment by Stalking in violation of HRS § 711-1106.5(1). The complaining witness, a 12-yr-old girl, testified at trial. She testified that one morning she was walking to school when she saw that a man, later identified as Holt, was talking to her from his car. He flirted with her. He asked if she had a boyfriend, said that he was a nice guy, and that he wanted to get to know her better. At one point, according to the CW, Holt reached out of the car and grabbed her. They arranged a meeting the next day. The CW went to her school and the police were contacted. The police went to the arranged meeting place nd saw Holt in his car. He was arrested. At trial, Holt's counsel attempted to cross-examine the CW with a written statement she gave to the police in order to show inconsistencies with her testimony on direct. The circuit court did not allow it into evidence. Holt testified in his defense and said that he saw a girl, talked to her, but did not realize that she was so young. Holt was found guilty and the sentencing court ordered that Holt undergo a sex offender treatment program (SOTP). Holt appealed.

Prior Inconsistent Statements Admissible, but Harmless Error. The ICA held that the circuit court erred in refusing Holt to allow into evidence those portions of the CW's written statement that were inconsistent with her testimony on direct. Hawaii Rules of Evidence (HRE) Rule 613 allows extrinsic evidence of a prior inconsistent statement into evidence only when (1) the circumstances of the statement are brought to witness' attention and (2) the witness has been asked whether he or she made the statement. Holt laid proper foundation for its admission under HRE Rule 613(b).

The ICA also held that it was admissible as a hearsay exception under HRE Rule 802.1. The difference is that if admissible under HRE Rule 802.1, the statement may be used as substantive evidence as well as impeachment evidence. To be admissible under the hearsay exception, (1) the witness must testify about the subject mater in the prior statement; (2) the prior statements must be inconsistent with the testimony; (3) the prior inconsistent statement must be reduced to writing; and (4) the prior inconsistent statement must be offered under HRE Rule 613(b). The ICA held that Holt met these requirements. The CW adequately testified about the incident (the subject of her written statement), there were parts in her written statement that were inconsistent w/ her testimony, it was reduced to writing, and Holt met the foundation requirements under HRE Rule 613(b). Thus, it should have been admitted as substantive evidence. Given the weight of the evidence presented against Holt at trial, however, the ICA could not conclude that the error arose to a "reasonable possibility that error might have contributed to conviction." Accordingly, the error in keeping the statement out of evidence was harmless beyond reasonable doubt.

No Plain Error in Instructing the Jury. Holt approved of the jury instructions, but on appeal alleges individual errors in the jury instructions, thus the ICA reviewed the instructions for plain error. The ICA held that the circuit court did not plainly err in failing to include an ignorance-or-mistake-of-fact instruction. The circuit court failed to include the instruction, but stopped the jury deliberation, asked the jurors to hand down a set of instructions, and re-read new instructions, including the ignorance-or-mistake-of-fact instruction. The time lapse did not show plain error. The ICA next concluded that there was no plain error when the circuit court ordered jurors to remove an extraneous jury instruction regarding the defendant's right to refuse to testify. Finally, there was no reversible error in ordering the jury to "deliberate anew" after receiving the 2d set of jury instructions. In comparison to State v. Stanley, 120 Wash. App. 321, 85 P.3d 395 (Wash. App. 2004), a Washington appellate case that found error where the trial court ordered the jury to deliberate anew after a new juror entered the jury, because there was no new juror here and the trial court's duty to "see to it that the case goes to the jury in a clear and intellgient manner," State v. Kupihea, 98 Hawai'i 196, 204, 46 P.3d 498, 506 (2002), was not compromised.

Sentencing for 120 Days Imprisonment OK. The ICA went on to sentencing and upheld the lower court's 120-day prison sentence. There was no abuse of discretion because the statutory max. for a misdemeanor was six months jail. This was w/in the court's discretion because it was not in excess of the max. and the court's rationale reflected the factors laid out in HRS § 706-663.

SOTP, However, is NOT. The ICA held that an abuse of discretion arose in imposing SOTP on Holt because there were no facts showing that he was in need of such treatment. First, harassment by stalking is not one of the sexual offenses defined in HRS Ch. 707, Pt. V or HRS Chapter 846E. As for specific facts around Holt's offense, while the CW may have been 12 years old at the time, there was no evidence before the sentencing court that Holt had "a history of or propensity toward improper sexual behavior." Finally, the sentencing court ordered SOTP without first ordering that Holt be assessed for SOTP.

But Wait! The ICA had one more thing to say: "Although not raised by the parties at trial or on appeal, we also bring to the circuit court's attention HRS § 711-1106.5(2), which provides that '[a] person convicted under this section may be required to undergo a counseling program as ordered by the court.'"

Can I Get a Nexus? The ICA found no reversible error at the trial phase. However, practioners can use this case for the steps needed to use a prior inconsistent statement as substantive evidence. The more interesting analysis came at sentencing. The ICA found the order to undergo an SOTP w/o evidence showing the defendant had a history of or propensity toward improper sexual behavior an abuse of discretion. Just because the CW was a little girl, and just because it was highly suggestive that Holt could have had vile thoughts at the time of the offense, that was not enough to order an SOTP. It might have been enough to order an initial assessment as to whether an SOTP would be appropriate, and, on a related point, it was certainly enough for the sentencing court to order other kinds of counseling. As this case demonstrates, when a defendant is not convicted of a sex offense, SOTP cannot automatically be imposed. There muse be some kind of nexus. Given the facts in this case, it appears that that nexus must be pretty strong.

Thursday, November 22, 2007

HSC Gives No Gratuity for Bad Service (of Bench Warrant)

State v. Owens (HSC November 19, 2007)

Background. On Feb. 20, 2001, Owens was charged with one count of Abuse of a Household/Family Member in violation of HRS § 709-906 on Oahu. He pleaded guilty and was sentenced to one year of probation. He was ordered to go to Adult Service Branch for an interview with intake services. Owens never showed up. The ASB mailed him a letter seeking his presence. The letter was returned to the sender with the words "no longer at this address" stamped on the envelope. The State filed a motion for revocation of probation and resentencing on March 27, 2001. The court issued a bench warrant on the same day. No attempts were made to serve the bench warrant until November 28, 2005, four years and eight months later, on Maui. Owens filed a motion to dismiss for the State's violation of HRPP Rule 9. The motion was denied and the ICA affirmed.

HRPP Rule 9 Applies to Post-Conviction Proceedings, Including Probation Revocation. The HSC rejected the trial court's conclusion that HRPP Rule 9 applies only to post-conviction proceedings. In doing so, the HSC adopted the State's "cogent and correct" analysis. HRPP Rules 1 states that the rules of the HRPP "govern the procedure in the courts of the State in all penal proceedings," w/ exception to the provisions in HRPP Rule 54. Similarly, HRPP Rule 2 states that the "rules are intended to provide for the just determination of every penal proceeding." Finally, HRPP Rule 49 states with ringing clarity that service of a bench warrant and its proof of service "shall be governed by rule 9[.]" Thus, any distinction between pre-conviction and post-conviction proceedings is irrelevant.

So What IS Unnecessary Delay? HRPP Rule 9(c) requires that a "warrant shall be executed without unnecessary delay by the arrest of the defendant." There is no bright-line rule in determining "unnecessary delay." The test in determining whether the service arose to "unnecessary delay" depends on (1) whether the defendant was "amenable to service while the penal summons were outstanding"; and (2) whether there was a reason for the delay in serving the summons. State v. Lei, 95 Hawai'i 278, 285-86, 21 P.3d 880, 887-88 (2001) (discussing State v. Mageo, 78 Hawai'i 33, 889 P.2d 1092 (App. 1995)). This is a balancing test (and that's why the appellate courts review for an abuse of discretion), and, like many balancing acts, there are relevant factors--whether the defendant was available for service while the bench warrants were outstanding; whether there was any indication in the record that the defendant intentionally avoided service; whether the prosecution could adduce evidence that it attempted to serve during that time; and whether the prosecution could establish that any attempt to serve would be futile.

Factors Favor Owens. The HSC found that there was "unnecessary delay" in violation of HRPP Rule 9. First, even though Owens had been living in the jurisdiction all this time thereby making him available for service. Second, the State offers no reason why it took so long to serve the bench warrant. Moreover, there was no evidence showing that Owens tried to intentionally avoid service, no evidence showing that it attempted to serve the bench warrant during the four-year-eight-month period, and no evidence that any attempts during that time would have been futile. The HSC made it clear that the burden is on the State in showing these matters.

HRPP Rule 9 Clock Starts at Issuance, not Failing to Appear. The HSC rejected the ICA's theory that the timing in determining "unnecessary delay" begins when the defendant fails to obey a court order. The true timing for HRPP Rule 9 begins after the bench warrant or summons has been issued. This, after all, makes sense because service before issuance is impossible.

Tuesday, November 20, 2007

County Ordinance Among the Facially-Challenged.

State v. Beltran (HSC November 16, 2007)

Beltran and her friends, Keawemauhili and Lucas, were cited for Camping w/o a permit in violation of Revised Ordinances of HNL, Ord. 10-1-3(a)(2). They appeared in district court and moved to dismiss on the grounds that the ord. was unconstitutionally overbroad and vague. The motions were denied and the parties pleaded no contest w/ the right to appeal the denial of their motions. The ICA vacated on the grounds that it was unclear whether the ord. was prosecuted as a strict liability offense and remanded. The HSC then took it up.

Standing Schmanding. Beltran first argued that the overbroad definition of “camping” infringed on her DP right to privacy and freedom of movement. When alleging that a statute is overbroad, the challenger must be “directly affected by the claimed overbroad aspects” unless the statute affects the freedom of expression. As her expressive conduct is not at issue, she would have no standing to challenge the ord. as overbroad.

Notwithstanding standing, the HSC noted that when criminal laws reach a “substantial amount” of constitutionally-protected conduct, the HSC has examined them for voidness and overbreadth even when it could conceivably have had some valid application. State v. Shigematsu, 52 Haw. 604, 483 P.2d 997 (1971). The HSC found that this was such a case.

Casting an Awfully Wide Net. When facially challenging a statute the court examines whether the ordinance “reaches a substantial amount of constitutionally protected conduct.” A substantial amount is based on the ambiguous as well as ambiguous scope of the law; in other words, “the vagueness of a law affects overbreadth analysis.” The ordinance defined “camping” to include conduct “regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” According to the HSC, “other activities” easily encompasses well-protected conduct such as walking around and looking up at the sky. Because the ordinance includes activity not specifically regulated by the ordinance, there was a “substantial amount” of constitutionally-protected conduct. The HSC held the void for overbreadth.

A Study In Vagueness. A criminal statute is void for vagueness unless it (1) gives the reader of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he/she may act according; and (2) provides explicit standards for those applying the statute to avoid arbitrary and discriminatory enforcement.

Camping is defined as “the use of public park[s] for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth-breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.”

The HSC noted that “living accommodation” distinguishes this activity from a daytime beachgoer. So far, so good. However, the “reasonably appears” standard in the 2d sentence brings it down. The HSC stated that the standard requires the actor to view his or her self as a third person would instead of informing the actor as to how to avoid a violation. It also gives complete discretion to the police in determining whether a person has violated the regulation. Thus, it would also be void for vagueness.

The County’s Scylla and Charybdis. The City and County of HNL’s camping ordinance is unconstitutional. So what happens now? The C & C has amended this particular definition several times over the years (presumably to combat the ever-growing homeless problem on the Leeward side). Now they’ve got to amend it again. Perhaps they should just strike the 2d sentence. That would take care of the vagueness problem. But then comes the overbreadth problem. Does that long and involved definition infringe on a “substantial amount” of constitutionally-protected conduct? Shigematsu waxes eloquently about the freedom of movement encompassing the “right of men [and women] to move from place to place, . . . to stand under open sky in a public park and enjoy the fresh air, to lie down on a public beach and enjoy a sunbath, . . . and the right to associate with others[.]” Id. at 610, 483 P.2d at 1001. So how does the County do it? How do you define camping without running into either one of these sea monsters? But is sleeping in the park a protected activity? Wouldn’t that be part of a “sunbath”? What about a moonbath? Is that just as constitutionally-protected as a sunbath? If so, then can Beltran and her friends sleep over?

But prosecutors should not get too upset by this. Perhaps Beltran and her friends were trespassing onto public parks and recreational grounds in violation of HRS § 708-814.5.

Saturday, November 17, 2007

Funny Things Happening at the Nonpublic Forum

In re: Casupang (HSC November 13, 2007)

Background. The HGEA, the exclusive union for government workers in Hawai'i, posted on a bulletin board in the fourth-floor office of the Department of Transportation an announcement that was anti-Lingle and urging its members to vote Democrat, esp. for Mayor Mufi Hannemann. A worker saw the announcement and was concerned. The DOT told HGEA to take down the announcement on the grounds that it was prohibited by the State Ethics Commission's "campaign restriction flier." The HGEA brought a prohibited labor practice complaint before the Hawai'i Labor Relations Board and lost. It appealed. The HGEA argued that, among other things, the gov't violated the First Amendment rights of the workers it represents when the State ordered it to take down its political materials.

Undeniable State Action. The HGEA must first show that the act at issue was state action. The ban was imposed by Gov. Lingle as an employer and executed by officials working on behalf of the State. The kind of speech involved is political, which fits squarely in the scope of protected speech. Undoubtedly, the State took action here.

Three Kinds of Gov't Property. The HSC next classified the three kinds of gov't property for First Am. purposes. A public forum is property traditionally designated for assembly and debate (e.g. streets and town squares) and any gov't regulation of them must be supported by a compelling interest. A limited public forum is property opened for public use for expressive activity and is subject to content-netural regulation (e.g. reasonable time, place, and manner); the ltd. public forum can be limited to only certain groups or topics of debate. Finally, there's the nonpublic forum which is subject any "reasonable restriction."

The HSC rejected the HGEA's claim that the board space was a public forum or a limited public forum on the grounds that the boards are not traditional places for debate like streets and plazas and that HGEA offered no evidence/case law showing that the bulletin board space was reserved for a public forum. The HSC also notes that although ltd. public fora may be created for a ltd. purpose such as use by certain groups, HGEA "does not cite to any case law in which a designated public forum was created for use by one group." Thus, the HSC held that the bulletin bd. space reserved for HGEA posting as provided in its collective bargaining agreement is a nonpublic forum subject to any reasonable restrictions.

Nonpublic Fora Allows Mere "Reasonableness." The HSC majority held that HGEA failed to argue that the restriction was unreasonable. Remember, once found nonpublic, the only kinds of unconstitutional restrictions are those that are unreasonable--content-based restrictions that discriminate among the viewpoints presented. Here the prohibition was against any and all campaign materials whether pro Democrat, Republican, Communist, or Libertarian. This, according to the HSC, was content-neutral and reasonable.

Justice Levinson's Concurrence. Justice Levinson concurred and CJ Moon joined. Levinson's concurrence, in this regard, went to the majority's assertion that HGEA did not raise any reasonableness arguments. Justice Levinson disagreed in this regard, but concluded that those argument--that the State's restriction thwarts the purpose of the CBA provision--was not persuasive.

Limited Public Fora Even More Limited? In concluding that the bulletin bd. space is a nonpublic forum, the HSC relied heavily on Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 US 37 (1983), where the US Sup. Ct. found an internal mail delivery system to be a nonpublic forum. In Perry, two unions vied for use of the mail system. One union was the exclusive representative of teachers. Another was an outside union challenging the state's exclusion from the mail system. The US Sup. Ct. concluded that the system was a nonpublic forum because it was not open to the public and upheld the exclusion. The HSC concluded that the DOT bulletin board, like the mail system, is not open to the public. Under Perry's facts, this makes sense. The outside union is part of the public. However, under these facts it's less so. HGEA is not arguing that the bulletin board is open to the public, it argues that the designated bulletin bd. space opens the union, as the exclusive representative of gov't workers, is open to HGEA. The HSC's counter that HGEA failed to cite case law allowing the designation of a public forum created for use by one group becomes relevant here.

But in doing that, has the HSC altered the definition of a limited public forum? When it extolled the three kinds of public property, the HSC, citing Perry, expressly mentioned that gov't property specifically designated for public use by certain groups and for certain topics still counts as ltd. public fora. Then again, if the absence of case law supporting that premise bumps it to a nonpublic forum, has the HSC read that part out of the definition of a ltd. public forum?

Labor Pains. The other issues in this case revolved around the Hawai'i statutes that allow unions to take concerted action on behalf of their members. Much of the discussions in these issues relate to the intricacies and expertise of labor law. Read the opinion to learn more.

No Foresseability Invites an Error that's Not Plain.


Moyle vs. Do Re Mi Karaoke (ICA Nov. 8, 2007)

Background. After a long night of drinking, Moyle went to the Do Re Mi Karaoke Bar in the wee hours to drink some more. As he was leaving the back door, Moyle was beat up and robbed by some other guy. Tupuola was found criminally liable. Moyle sued Do Re Mi claiming negligent failure to provide adequate security and negligently failing to protect its patrons. At trial, Moyle tried to get police reports about the incident into evidence, but the circuit court precluded them. Moyle also challenged the jury instructions. A jury trial entered a verdict in Do Re Mi's favor. Moyle appealed.

Failure to Define Foreseeability Errors Precluded by Invited-Error Doctrine. Moyle challenged two instructions that related to the foreseeability of criminal acts by a 3d party. The ICA held that this was invited-error. The invited-error doctrine prohibits a party who brings about the error at the trial level from raising that error on appeal. Kealoha v. Tanaka, 45 Haw. 457 (1962).

For jury instructions, invited error arises when the party appealing the contents of an instruction was responsible for the instruction; when the party agreed to the contested instruction; and when the party contends the omission of an instruction brought on by that party's own actions (e.g. party withdraws an instruction that the party later argues should've been read). In this case, Moyle withdrew a clear instruction on foreseeability, but failed to offer a substitute. Now, Moyle argues that there should have been an instruction. The ICA held this to be an invited error.

Not Plain Error Either. Invited error can be overlooked if it's plain error. The ICA took a rigorous plain-error analysis and would only recognize it if (1) the issue doesn't involve questions of fact; (2) the issue does not go to the "integrity of the fact-finding process"; and (3) the issue doesn't go involve questions of "great public import." As to the 2d prong, because the jury is the factfinder, the failure to instruct it would affect the integrity of its findings. In Montalvo v. Lapez, 74. Haw. 308 (1994), the HSC found plain error after its invited-error analysis. The error in Montalvo pertained to the failure to clearly defined "legal cause" to the jury. The HSC held that this was an error because "legal cause" is "a concept foreign to most non-lawyers[.]"

The ICA here distinguished Montalvo because, unlike "legal cause," foreseeability is a common term that can be understood by most non-lawyers. The ICA then engages in a nice discussion of forseeability and the duty of business owners, if any, to protect its patrons from criminal acts.
Generally, such criminal acts are so unlikely in any circumstance, that the burden of taking precautions against them almost always exceeds the risk absent a special relationship such as the business-establishment-patron relationship. There was an affirmative duty between Moyle and Do Re Mi. Nevertheless, according to the ICA, "forseeability" is a term that is generally understood by non-lawyer jurors. So while Do Re Mi did indeed have a duty to protect Moyle, and while the circuit court failed to clearly define the term, leaving out an instruction on "foreseeability" did not compromise the integrity of the jury’s findings and wasn't plain error either.

This could take us down a strange path. If plain error hinges on whether the concept that was not clearly defined is familiar to laypersons rather than lawyers, it'll be difficult in the future to determine just where exactly that line is. "Legal cause" may be familiar to lawyers and only lawyers. "Forseeability," is a common enough term. But what about something like, say "punitive damages"? Is that a term known only to lawyers? It is, after all, a term of art that needs to be explained and has been defined by courts. On the other hand, the same can be said about "foreseeability" and the opinons, including this one, that have waxed eloquently on the subject. The arguments from this line of reasoning could be hardly foreseeable.

Other Issues Did Not Warrant Reversal. As with many civil appeals, there were other issues in this case, and none went to a favorable result for Moyle. Thus, a victory for karaoke bars statewide.

Editor's Note-- This opinion was briefed by Kirstin Hamman. Thanks Kirstin!

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."

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.