HSC holds a sentencing enhancement is not an element under a state statute even thought it is an element under the Sixth Amendment.

 State v. Smith (HSC September 12, 2025). Brian Smith was indicted for murder and attempted murder arising from a shooting in Kona. Both counts alleged that he was subject to a sentencing enhancement under HRS § 706-660.1 alleging that he possessed, used, or threatened to use a firearm while committing the offense. The prosecution did not allege a state of mind for the enhancement.

 

Smith went to trial. The circuit court instructed the jury that if it found him guilty of either count, it must answer a special interrogatory:

 

Has the prosecution proved beyond a reasonable doubt that the defendant intentionally used and/or threatened to use a firearm, whether the firearm was loaded or unloaded, operable or inoperable, while engaged in the commission of the offense of Murder in the Second Degree or Manslaughter (Extreme Mental or Emotional Disturbance)?

 

The jury returned a guilty verdict and answered “yes” to the interrogatory. The circuit court sentenced Smith to life with the possibility of parole with consecutive mandatory minimums of fifteen and three years. Smith appealed, and won. The ICA vacated the judgment and remanded the case for a new trial.

 

On remand, Smith challenged the sentencing enhancement. He argued that the facts needed to impose the mandatory minimum in HRS § 706-660.1 are elements of the offense that need to be proven beyond a reasonable doubt and found by a jury. State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015). Thus, like any other element, the applicable state of mind must be pleaded in the indictment. State v. Gonzalez, 128 Hawaii 314, 324, 288 P.3d 788, 798 (2012). The circuit court granted the motion. The prosecution appealed. The ICA vacated the order striking the enhancement. Smith petitioned for a writ of certiorari.

 

What is required . . . Defendants have the right to be “fully” informed of the “nature and cause of the accusation” against them. Haw. Const. Art. I, Secs. 5, 10, and 14. That requires the charging instrument to “sufficiently alleges all of the essential elements of the offense charged[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977). When a charge does not contain an essential element, no conviction can be based upon it “for that would constitute a denial of due process.” State v. Mita, 124 Hawaii 385, 390, 245 P.3d 458, 463 (2010).

 

The HSC turned to HRS § 701-114. The HSC stated that this statute creates the “statutorily defined burden of proof and persuasion” the State carries to obtain a criminal conviction. That requires the State to prove “[e]ach element of the offense” and the “state of mind required to establish each element of the offense.” HRS § 701-114(1)(a) & (b). Elements are further defined in HRS § 702-205: the conduct, attendant circumstances, and results of the conduct as specified in the offense.

 

But a sentencing enhancement is not an “element” under the Hawaii Penal Code. The HSC first turned to a statutory issue: whether the sentencing enhancement was an “element” under the Hawaii Penal Code. It is not. In State v. Wagner, 139 Hawaii 475, 394 P.3d 705 (2017), the HSC addressed whether the trial court erred by allowing the prosecution to present evidence of a prior conviction—which would enhance the sentence—during the first phase of the jury trial: before it determined whether the defendant committed the offense.

 

In deciding that the prior conviction was a sentencing enhancement as opposed to an element, the HSC looked at the plain language of the statute, the statute’s structure, legislative history, and due process concerns. Id. at 481-84, 394 P.3d at 711-14. The HSC held that it was not an element and should have been bifurcated. The HSC applied the analysis here.

 

HRS § 706-660.1 is a sentencing enhancement. The four factors—plain language, structure, legislative history, and due process concerns—all indicate that it is a sentencing enhancement, not an element “within the meaning of HRS § 702-205.”

 

But what about Auld? The HSC explained that Auld does not change the result. Indeed, Auld expressly held that “any fact that increases the penalty of a crime” is an “element” that has to be proven to a jury beyond a reasonable doubt. The holding is consistent with the rule for the Sixth Amendment in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013).

 

But the HSC noted that that does not make this an “element within the meaning of HRS § 702-205.” Auld used the term “‘element’ only within the meaning of Apprendi and Alleyne, not the Hawaii Penal Code.” That meant Smith’s reliance on those cases is misplaced. The HSC acknowledged that the word “element” under the Sixth Amendment is different from the word “element” in the Hawaii Penal Code:

 

Although a sentencing enhancement factor is an “element” within the meaning of Apprendi, because it is a “fact that . . . increases the penalty for a crime,” see Alleyne, 570 U.S. at 108, and therefore must be alleged in the Indictment and proven to the jury – as it was here – that does not make it an “element” of the underlying offense for purposes of HRS §§ 702-204 and –205.

 

Due process does not require pleading the state of mind either. Finally, the HSC held that due process is satisfied “when the charging instrument gives a criminal defendant notice that a sentencing enhancement will be sought if convicted under the predicate offense and contains sufficient allegations to support its application.” That’s it. A state of mind is not required.

 

Justice McKenna’s Concurrence and Dissent. Justice McKenna recognized that buried in the majority opinion there was Smith’s recognition that he had actual knowledge of the required state of mind and in this case, it was an “intentional” one. “Therefore, the majority implicitly holds that an ‘intentional’ state of mind applies to the firearm possession mandatory minimum sentence enhancement of HRS § 706-660.1. To that extent, I concur with the majority opinion.” She departed from the rest.

 

She wrote that a sentencing enhancement is “technically not an ‘element’ under Hawaii law,” it still contains facts that increases the mandatory minimum making it an “element.” Alleyne v. United States, 570 U.S. at 103. For her, the “Circuit Court of the Third Circuit got it right.”

 

So when does the statute trump the Constitution? This is a curious case. The HSC readily acknowledges that the word “element” has a different meaning under the Sixth Amendment than the Hawaii Penal Code. The latter does not include things like sentencing enhancements. And yet, a sentencing enhancement has to be pleaded. Auld, 136 Hawaii at 255, 361 P.3d at 482. But apparently there is no need to allege the state of mind for that enhancement. Why? Because it’s not an “element” under the Hawaii Penal Code.