Monday, July 28, 2008

Consecutive Mandatory Minimums Allow (or Require?) Consecutive Indeterminate Maximums.

State v. Kamana'o (HSC July 23, 2008)

Background. In 1983, a jury convicted Kamana'o of three class A felonies: two counts of sex assault in the first degree (HRS § 707-730) and one count of sodomy in the first degree (HRS § 707-733). Kamana'o was sentenced to the maximum of twenty years per count, but the sentence was vacated. The sentence, however, was vacated on Fifth Amendment grounds. At resentencing, the circuit court granted the State's motion for extended sentencing. The United States District Court, however, vacated that sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. At the second resentencing, the circuit court sentenced Kamana'o to the maximum twenty-year sentence for all three counts. The circuit court ordered that the two counts for sex assault run concurrently, while the sodomy count run consecutively. The circuit court also determined that Kamana'o was a repeat offender and was subject to a mandatory minimum of five years for each count. Like the indeterminate maximums, the five-year minimums for the sex assault counts ran concurrently, while the five years for sodomy ran consecutively. All in all, Kamana'o faced a 40-year indeterminate maximum sentence with a hard ten years. Kamana'o appealed.

The Conflicting Statutes. The HSC rejected Kamana'o's argument that the circuit court was not authorized to impose consecutive terms of imprisonment. Back in 1983, the sentences "shall be served concurrently." HRS § 706-668 (Special Pamphlet 1975). However, noted the HSC, the repeat-offender statute allows the sentencing court to impose the mandatory minimum consecutively "notwithstanding . . . any other law to the contrary[.]" HRS §§ 706-606.5(1) and (3). The HSC concluded that the statutes overlapped when it came to sentencing and both ought to be given effect. See Richardson v. City and County of Honolulu, 76 Hawai'i 46, 55, 868 P.2d 1193, 1202 (1994).

The Specifics on General Rules. As the statutes overlapped, the HSC read them in pari materia, that is, "[w]hat is clear in one statute may be called upon in aid to explain what is doubtful in another." Barnett v. State, 91 Hawai'i 20, 31, 979 P.2d 1046, 1057 (1999); HRS § 1-16. Here, the repeat-offender statute is a specific statute carving out an exception to the general rule requiring concurrent sentences. Therefore, when the sentencing court exercises its discretion and imposes mandatory minimums to run consecutively, the indeterminate maximum sentences must also run consecutively. The HSC explained that the mandatory minimum is part of the indeterminate maximum. According to the HSC, they are two parts of the same sentence and are inseparable. This way, a sentencing court cannot impose a series of consecutive minimums beyond the indeterminate maximum. See State v. Saufua, 67 Haw. 616, 699 P.2d 988 (1985).

Justice Levinson's Dissent. Justice Levinson did not think that the mandatory-minimum statute authorized a sentencing court to impose consecutive maximum sentences. According to Justice Levinson, HRS § 706-606.5 simply does not speak to the issue of consecutive maximum sentences. The plain and unambiguous language of HRS § 706-606.5 concerns only the mandatory minimum. Nothing, according to Justice Levinson, requires the minimum to run consecutively with the maximum and vice-versa. As for the "notwithstanding" clause in HRS § 706-606.5, the two statutes are so vastly apart that HRS § 706-668 is not even implicated. This means that Justice Levinson does not think the statutes should be read in pari materia at all. This did not mean, however, that the circuit court was deprived from imposing consecutive minimums. Under Justice Levinson's view, a sentencing court can impose consecutive minimums even when the maximums must run concurrently so long as the consecutive minimums must be lesser than or equal to the maximum. Justice Levinson recognized that State v. Saufua, 67 Haw. 616, 699 P.2d 988 (1985), supported the majority's position, and believed it should be overruled.

Chief Justice Moon's Dissent. Chief Justice Moon also dissented. He agreed with Justice Levinson that HRS § 706-606.5(3) does not authorize the sentencing court to impose consecutive maximum terms. The Chief Justice pointed out that for purposes of the repeat-offender statute, "convictions on several counts . . . are to be treated as only one conviction[.]" State v. Tavares, 63 Haw. 509, 515, 630 P.2d 633, 637 (1981). And while that holding may have been criticized, State v. Cornelio, 84 Hawai'i 476, 935 P.2d 1021 (1997), it has yet to be overruled. Furthermore, the legislature amended HRS § 706-606.5 to harmonize the term "conviction" with Tavares. HRS § 706-606.5(7). Thus, even in 1983, the term "conviction" meant all three counts. According to the Chief Justice, where multiple sentences arise from multiple counts, the sentence must run concurrently. All three of Kamana'o's twenty-year counts should be served concurrently.

The Chief Justice also departed from the majority and Justice Levinson when he took issue with the imposition of consecutive mandatory minimums. The mandatory minimum, for the Chief Justice, can only run consecutively to other "sentences," i.e. prior offenses. See State v. Tavares. This explains why the Chief Justice finds no real reason to overturn State v. Safua, 67 Haw. 616, 699 P.2d 988 (1985), (affirmed consecutive mandatory minimums at the resentencing defendant convicted of an offense while on probation; sentencing court imposed the consecutive terms to the current sentence and the offense underlying probation).

Interpreting a Repealed Statute. It appears that the HSC has resolved a conflict that no longer exists. HRS § 706-668, the "general" statute that requires all sentences to run concurrently, was repealed and replaced in 1986 with HRS § 706-668.5, which affords the sentencing court power to impose consecutive terms in no unambiguous terms. The conflicting statutes in this case, therefore, is probably moot for any defendant that has yet to be sentenced.

The Sentencing Court's Dilemma. But other questions remain. The HSC held that consecutive maximum terms are part of the mandatory minimum. Thus, when the sentencing court orders consecutive minimums, the maximums are also consecutive. But must it be that way? Does this mean that the sentencing court must impose consecutive indeterminate maximums when it opts to impose consecutive minimums? It seems so. That said, it also seems that the sentencing court would be prohibited from imposing consecutive minimums while allowing the maximums to run concurrently. It could get tough. The HSC pointed out that while the sentencing court has the authority to impose these consecutive mandatory minimums (and thus impose consecutive maximums), that power is not unlimited. Imposing consecutive mandatory minimums are reviewed for an abuse of discretion. State v. Putnam, 93 Hawai'i 362, 372, 3 P.3d 1239, 1249 (2000). Would a sentencing court who wants a longer mandatory minimum risk a challenge to its discretion by forcing itself to impose the long and arguably excessive consecutive indeterminate maximum terms? Perhaps.

Editor's Note. Special mahalo to Justin F. Kollar on Kauai for his contribution to this piece.

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