Sunday, January 2, 2011

HSC OK's Paroling Authority's Retroactive Application of its own Decision

Garcia v. State (HSC December 21, 2010)

Background. David Garcia pleaded guilty to five counts of robbery in the 2d degree. He was sentenced to ten years with a mandatory minimum of three years, four months for the first count. For the remaining four counts, he was sentenced to ten years running concurrently. However, count I would run consecutively with counts II-IV. The Hawai'i Paroling Authority (HPA) fixed a minimum term for each count at seven years. Garcia received credit for each of the five counts. After that, the HSC held in State v. Tauiliili, 96 Hawai'i 195, 29 P.3d 914 (2001), that pursuant to HRS § 706-671, jail credit for consecutive terms must be given in the aggregate, not for each term. The Department of Public Safety (DPS) issued a written policy effective January 1, 2005, for calculating credit in light of Tauiliili. The HPA recalculated Garcia's credit. Garcia filed a petition pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. The petition was denied the by the circuit court, and the ICA affirmed.

The Policy (and the Decision Itself) is not an Ex Post Facto law. "No State shall . . . pass any . . . ex post facto Law.[.]" U.S. Const. Art. I § 10. A law is ex post facto when it "aggravates a crime, or makes it greater than it was when committed[.]" Miller v. Florida, 482 U.S. 423, 429 (1987). The provision is intended "to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation." Id. This "constitutional prohibition against ex post facto measures applies only to legislative enactments." State v. Jess, 117 Hawai'i 381, 402, 184 P.3d 133, 159 (2008). The HSC noted that it had never determined whether administrative rules, policies, or regulations constitute "laws" implicating the Ex Post Facto Clause. Here, however, the "law" is not the policy, but HRS § 706-671 as interpreted by Tauiliili. The HSC held the HPA recalculated the jail credit "as it should have been under the sentence. Therefore, any change in DPS's or HPA's internal policies regarding the calculation of presentence credit is irrelevant for purposes of an ex post facto analysis."

Tauiliili's Tautology? The HSC appears to have held that because it, an appellate court, rendered a decision that aggravated or adversely affected Garcia's sentence, it cannot be considered a "law" under the Ex Post Facto Clause. But is that merely a matter of characterization? The statute controls the credit, and a statute is exactly what the ex post facto Clause is intended to target. So what difference does it make if the statute has now been interpreted to the detriment of Garcia? Wouldn't that cut closer to an invocation of the constitutional protection? Does this case stand for the proposition that when an appellate court interprets a statute, that interpretation of the statute does not call for an ex post facto analysis? Perhaps so.

Retroactive Application does not Violate Due Process Clause Either. Having held that the Ex Post Facto Clause was inapplicable, the HSC examined whether the retroactive application of Tauiliili was proper. The "judicial reformation of the law violates the principle of fair warning, and hence must not be given retroactive effect, where such reformation is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue." State v. Jess, 117 Hawai'i at 403, 184 P.3d at 160. (quotation marks omitted.). The HSC held that the decision in Tauiliili was neither a reformation of the law nor was it unexpected. First, this was not a "reformation." Tauiliili was the first time the HSC interpreted HRS § 706-671 and it simply reiterated "what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13 (1994). Second, even if it was, Tauiliili was not unexpected. According to the HSC, the commentary for HRS § 706-671 and an accompanying regulation, HAR § 12-1204-17, "suggest" that presentence credit should be given only once to the aggregate of the consecutive sentences.

Anticipating the Court? A due process violation arises here when the reformation of the law is "unexpected and indefensible[.]" The HSC held that Tauiliili would not be unexpected and indefensible because the commentary and the language of the statute clearly anticipated its holding. But Tauiliili was the first time the HSC interpreted HRS § 706-671. And on top of that, there was even some evidence--or at least the argument--that the HPA often credited per count and not in the aggregate. Does this mean that statutes which have never been interpreted by courts but are plain in their meaning should be unexpected for purposes of this analysis?

Retroactive Application was Proper too. Although "judicial decisions are assumed to apply retroactively," it is not automatic. State v. Izekawa, 75 Haw. 210, 220, 857 P.2d 593, 597 (1993). When a decision announces a "new rule," "this court may, in its discretion, determine that the interests of fairness preclude retroactive application of the new rule[.]" State v. Ketchum, 97 Hawai'i 107, 123 n. 26, 34 P.3d 1006, 1022 n. 26 (2002). Thus, retroactivity is assumed unless a "new rule" is announced. State v. Jess, 117 Hawai'i at 400, 184 P.3d at 152. A "new rule" arises "only when the law changes in some respect that an assertion of nonretroactivity may be entertained, the paradigm case arising when a court expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the parties may previously have regulated their conduct." Id. at 400, 180 P.3d at 152. Here, the HSC held that Tauiliili did not hold anything new; it merely "confirmed the law as it existed prior to that decision."

Even if it was a new rule, it still Should Apply. Even if it was a new rule, the HSC concluded that it should apply retroactively. Whether a court should apply a new rule retroactively hinges on a number of factors: (1) "the purpose to be served by the newly announced rule"; (2) how much law enforcement relied on the old law; and (3) "the effect on the administration of justice of a retroactive application of the new standards." State v. Santiago, 53 Haw. 254, 268, 492 P.2d 657, 665 (1971). Additional factors include "[p]rior history of the rule in question, its purpose and effect, and whether retroactive operation will further or retard its operation; interests in the administration of justice and the integrity of the judicial process." Russell v. Blackwell, 53 Haw. 274, 277, 492 P.2d 953, 956 (1972). The HSC applied these Santiago factors and concluded that "any alleged inequity resulting from the recalculation of [Garcia's] sentence does not outweigh the other Santiago factors."

Dicta Alert! The HSC's analysis of Garcia's petition was thorough. First, it held that there was no violation of the Ex Post Facto Clause because it did not apply to its judicial decision. Then it held that the retroactive application of the decision did not violate the Due Process Clause because it cannot be considered a "new law." It also "held" that even if it was a new law, it still is fine because this "new law" was not unexpected and indefensible. That part, it would seem, is simply obiter dictum. Then there was the issue of the retroactive application itself. The HSC held that it was not error to apply it retroactively because again it was not really a "new rule." And even if it was, the factor-based analysis cut toward retroactive application. But that too seems to be dictum.

No comments: