Tuesday, August 12, 2008

Prior Convictions and its Discontents

State v. Heggland (HSC August 8, 2008)

Background. Heggland pleaded guilty to two counts of promoting a dangerous drug in the third degree (HRS § 712-1243(1)) and prohibited acts relating to drug paraphernalia (HRS § 329-43.5(a)), which allegedly took place on August 28, 2003. The State moved for a mandatory minimum sentence on the grounds that Heggland was a repeat offender based on a prior offense in Colorado. The State admitted into evidence a printout from a Colorado government webpage indicating that he was sentenced on November 14, 1997 to a five-year term of imprisonment and was on parole until November 2004. The parties stipulated to the existence of the Colorado conviction. The circuit court, however, concluded that the State did not present sufficient evidence of the prior conviction as there was no evidence showing Heggland was represented by counsel or waived his right to counsel in Colorado. The ICA vacated and remanded.

Strictly Applying the Repeat Offender Statute to non-Hawai'i Priors. Mandatory minimums apply when the "instant felony was committee . . . within the maximum term of imprisonment possible after a prior felony of another jurisdiction." HRS § 706-606.5(2)(f). Hawai'i has indeterminate sentencing, which means that the court sentences a defendant to a maximum term of imprisonment while the Hawai'i Paroling Authority determines when the defendant is parole-eligibile. HRS § 706-669(5); Williamson v. Hawaii Paroling Auth., 97 Hawai'i 183, 191, 35 P.3d 210, 218 (2001). Thus, for indeterminate sentencing the phrase "maximum term of imprisonment possible" means the statutory maximum of imprisonment available for the offense.

But not every jurisdiction has indeterminate sentencing. In Colorado the court is sometimes required to place a defendant on parole at the end of his or her prison term. A violation of the conditions of parole could lead to re-imprisonment. This parole period, according to the HSC, may be part of the defendant's sentence, but it is not part of the "maximum term of imprisonment possible." The HSC cautioned that when applying HRS § 706-606.5(2)(f) to foreign sentencing schemes unlike Hawai'i's indeterminate sentencing, "it behooves this court to strictly apply the words of the statute." Whether the HSC would interpret the statute strictly for indeterminate schemes similar to Hawai'i remains to be seen.

Evidence of a Prior Conviction: Harder than it Looks? This cleared up the meaning of the mandatory minimum statute, but it certainly did not clear up the resolution of this case because, even if the ICA set the maximum imprison term without considering the parole term, the Colorado conviction still carried a maximum prison term of six years, which would still invoke HRS § 706-606.5. Heggland, however, argued that there was insufficient evidence showing the existence of the prior conviction (even though he stipulated to its existence). The HSC rejected this.

The Burden of Proof in Showing a Prior in five easy Steps. The HSC agreed with the ICA that Heggland failed to raise a good-faith challenge to the use of the prior Colorado conviction in the presentence report. Generally, the State has the burden of showing the existence of a prior conviction as well as the fact that the defendant was represented by counsel or waived his right to counsel "[u]nless conceded by the defendant." State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929 (1979). The ICA, in State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228 (App. 1996), articulated a five-step process in determining whether a defendant conceded. If so, then the burden shifts to the defendant. The HSC agreed with the ICA that Heggland did not challenge the use of the prior convictions. Rather, Heggland argued that the repeat-offender statute did not apply because the Hawai'i offense took place after the maximum term of imprisonment possible from Colorado.

Sufficient Evidence of a Prior. With the burden squarely placed on Heggland, the HSC addressed his challenges to the adequacy of the State's proof of the prior. Prior convictions may be proved by any evidence, "that reasonably satisfies the court that the defendant was convicted." HRS § 706-666(2). Certified copies of the indictment and the judgment and testimony of the probation officer assigned to prepare a presentence report are also sufficient evidence. State v. Frietas, 61 Haw. 262, 278, 602 P.2d 914, 926 (1979). Here, the State presented testimonial evidence of a parole officer with a computer printout from a Colorado database. The date of the prior conviction on the printout was consistent with the State's motion and the date provided in the presentence investigation report. There was no reason, according to the HSC, to question the sentencing date, and, therefore, even though the ICA may have misinterpreted the statute, it did not err in holding that the circuit court abused its discretion in finding insufficient evidence of a prior offense.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority about interpreting HRS § 706-606.5(2)(f). However, he disagreed with the applicability of Sinagoga. According to Justice Acoba, the five-step process in Sinagoga applies only when the defendant challenges the use of the prior conviction on the grounds that he or she was uncounseled during the prior or on the grounds that the prior conviction itself was not rendered against him or her. See State v. Veikoso, 102 Hawai'i 219, 227 n. 8, 74 P.3d 575, 523 n.8 (2003). Heggland did not challenge the use of the prior on either of those grounds so the Sinagoga burden-shift does not apply at all and the burden stayed with the State.

Justice Acoba also would have deferred to the circuit court's conclusion that there was insufficient evidence showing a prior conviction. The record shows no certified judgment or indictment and fails, according to Justice Acoba, to establish the existence of a prior conviction to the circuit court's satisfaction. However, because Heggland stipulated to the prior felony conviction in Colorado, Justice Acoba agreed with the majority that the circuit court abused its discretion in failing to consider the prior conviction.

Chief Justice Moon's Concurrence. Chief Justice Moon concurred in the result only.

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