First Challenge to new Extended Term Sentencing leaves Statutes Intact.

State v. Cutsinger (ICA January 30, 2008)

Cutsinger was charged with burglary in the 2d (HRS § 708-811) and possession of burglar's tools (HRS § 708-822(1)(a)). He pleaded guilty to both counts. The State filed a motion for extended sentencing on the grounds that he was a "persistent offender". HRS §§ 706-661 and 706-662(1). The motion was granted. Cutsinger then filed a motion to reduce his sentence based on, inter alia, Apprendi v. New Jersey, 530 U.S. 466 (2000) and progeny. That part of the motion was denied, and Cutsinger was sentenced to 10 years of imprisonment on Sept. 9, 2006. Cutsinger filed his notice of appeal on Sept. 27, 2006.

Pending the appellate disposition, Cunningham v. California, 549 U.S. ___ (2007) and State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2004) came down from the US and Hawai'i supreme courts respectively. The cases held that the statutes used to extend Cutsinger's sentence were unconstitutional because they allowed a judge, and not a jury, to determine certain facts that would increase the statutory maximum (not including prior convictions). The Legislature responded by enacting Act 1 in the 2007 Special Session, which gave retroactive effect upon request by a prosecutor.

On Nov. 28, 2007, almost one month after the new extended-term laws took effect, the State filed a "Motion to Vacate Sentence and Remand for Resentencing in Accordance with Act 1 (2002 2d Special Session)" before the ICA.

Get to the Merits, Counsel! Cutsinger first argued that the ICA should decline reaching the questions of retroactivity and notice because it was not yet ripe for review. The ICA disagreed. It is unquestioned that Cutsinger will be resentenced, and the State has made it clear that upon resentencing, the State will seek extended terms based on the newly-enacted legislation. Therefore disposition of the retroactivity dispute is not a mere advisory opinion. Even if it was, noted the ICA, Hawai'i courts are not bound by the "case or controversy" requirement like federal district courts. State v. Fields, 67 Haw. 268, 274 n. 4, 686 P.2d 1379, 1385 n. 4 (1984). Then again, self-imposed prudence "militate against a court's issuing an advisory opinion or deciding matters" not yet ripe. Id.

Let's get Federal. The Hawai'i Constitution has no ex post facto clause. Thus, whether the retroactive application of the extended sentencing terms, is a purely a question of federal constitutional law. Article 1 § 10, cl. 1 of the U.S. constitution prohibits a State from passing any "ex post facto Law." Any law punishing as a crime an act previously committed that (1) was innocent conduct when done; (2) that makes the punishment for that crime more burdensome; or (3) that deprives the defendant of any defenses that were available at the time the alleged crime was committed is generally an ex post facto law. Collins v. Youngblood, 497 U.S. 37 (1990).

Additionally, the U.S. Supreme Court has stated that for a law to violate the ex post facto clause, it must be is retrospective (i.e. applies to events occurring before it was enacted) and is a disadvantage to the offender. Miller v. Florida, 482 U.S. 423 (1987). However, there is the ever-present exception--retrospective changes in procedure rather than the substantive law of the crimes are not ex post facto. Id. The procedural exception arises because it does not disturb the two reasons why the ex post facto clause was included into the federal constitution: to assure that legislatures were prohibited from enacting "arbitrary or vindictive legislation" and to assure that persons can rely on already-enacted legislation that give fair warning of their effect until explicitly changed.

Retro, yes; Ex post facto, no. The ICA held that retroactively applying Act 1 to Cutsinger does not violate the ex post facto clause because it does not increase the punishment beyond what it was prescribed before enactment. When he committed the crimes, Cutsinger still faced a 10-year sentence upon a finding of a "persistent offender." The criteria necessary to find a "persistent offender" is identical to the old statute. The only difference for Cutsinger is that a jury must find the critera beyond a reasonable doubt, not a judge. The new law is not more onerous than the old one. In fact, the ICA observed, the higher standard of proof and a jury finding of fact affords additional benefits.

The ICA also held that Act 1 is a procedural change even if the rationale is based on preventing a violation of Sixth Amendment rights. The allocation of the decision-maker is a procedural rule. Schriro v. Summerlin, 542 U.S. 348, 353 (2004), and Apprendi and its progeny have nothing to do “with the definition of crimes, defenses, or punishments, which is the concern of the ex post facto.” Collins, 497 U.S. at 51.

Unconstitutional, yes; void, no. Cutsinger’s also argued that Act 1 violated the ex post facto clause because the old law was voided by Maugaotega. Therefore, according to Cutsinger, there was an onerous burden being retroactively applied (and on remand no extended term statute applied). The constitutional infirmity in the old statutes was not based on any of the criteria used to find a convict a “persistent offender.” Instead, it was based on the burden used to find those facts and the proper factfinder. The infirmity does not speak to any of the substance in the old statutes.

Interestingly, the ICA examined the HSC’s decision in Maugaotega to self-imposed stay of its inherent judicial power to vacate Maugaotega’s judgment and sentence and remand to the circuit court with instructions to resentence with a jury to make findings beyond a reasonable doubt. This stay of judicial power, according to the ICA, reveals that the unconstitutionality of the statute did not extinguish the prior existence of the statute. The ICA also concluded that the HSC’s show of restraint revealed that the legislature was free to enact a law that would cure the unconstitutionality, which is promptly did.

But can it ever be void? The ICA examined the effect of a statute declared unconstitutional because of its procedural requirements. In other words, the ICA looked beyond the mere fact that a statute was found unconstitutional. It examined why it was unconstitutional, and determined that it was not void from the start because of the nature of the unconstitutionality rested with procedure rather than substance and because of an implicit hint to the legislature to make the fix. The ICA’s analysis leaves open the possibility that an unconstitutional law renders the law void. There can be situations where a law’s unconstitutionality affects the substance of the law that cannot be remedied by the legislative fix. Perhaps a law that is found unconstitutionally vague, such as the recent HNL ordinance at issue late last year in Beltran, is void ab initio. In that case the unconstitutionality rested in the conduct that was unlawful. It was not a procedural infirmity. Another example could be State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980), where the HSC held that under the Hawai’i Constitution, the derivative and use immunity is inadequate. No legislature can fix this (only a constitutional amendment or a ConCon can, but, believe me, that’s another story for another time).

The Triumphant Return of Intrinsic/Extrinsic facts!? Act 1 requires notice to the defendant that the State will seek extended terms w/in thirty days of his or her arraignment. When Act 1 applies retroactively, a defendant who had been sentenced under the older extended terms “shall be deemed to have received notice of an intent to seek [the retroactive application.]” Cutsinger argued that he received inadequate notice that the State would again seek to sentence him as a “persistent offender” because there was no allegation in the complaint. At first it appears that the ICA joined the majority of jurisdictions and held that Apprendi and progeny do not require the State to allege the sentence-enhancing facts in either an indictment or a complaint, but then it turned to the HSC’s cases prior to Cunningham and Maugaotega and carved out an exception. The HSC, in a footnote, observed the importance of the extrinsic-intrinsic distinction when it comes to alleging them in the indictment. Maugaotega, 115 Hawai’i at 449 n. 19, 168 P.3d at 579 n. 19.

From this footnote, the ICA held that intrinsic facts, that is, facts contemporaneous with or enmeshed with the charged crime (e.g. the particular status of a victim) must be alleged in the indictment because they are more or less part of the crime. Thus, reasoned the ICA, it made sense to treat the fact as part of the crime itself. On the other hand, those factors that stand outside of the crime being charged, such as being a “persistent offender” based on past acts, need not be charged with the indictment. In fact, it would actually prejudice the defendant if it were part of the indictment. Thus, there must be some kind of notice when the factors are extrinsic.

The new debate. So when the facts are extrinsic, there still must be notice pursuant to Act 1, but now the ICA has held that these facts cannot be asserted in the complaint. It begs the question of when, if not in the complaint, notice must be brought. Here, the ICA concluded that there was adequate notice for Cutsinger partly because of the awkward posture of his case. By the time he will be resentenced on remand, he will have been on notice for about eighteen months, and thus “ample time” to prepare his defense. The issue probably includes proactive applications of Act 1 too, but it’s a bit more limited. Act 1 provides notice to be brought within 30 days of the arraignment. Does this mean that when the fact is intrinsic, can it be left out of the complaint as long as the notice is brought within the proscribed time? Or what about when it’s extrinsic and it must be (1) outside of the complaint but (2) within thirty days? Does having time to provide an “ample defense” so long as its w/in thirty days have any play? We’re in uncharted territory, folks, and it’s very exciting.


LoF said…
This comment has been removed by the author.
LoF said…
I haven't read this opinion yet, so this may be premature. I do remember when the US SCt twisted the ex post facto clause into the land of logical absurdity solely to allow Alaska to put sex offenders convicted decades before the enactment of the statute on their lifetime electronic hall of shame. (About 5 years ago.) I guess "ex post facto" doesn't really mean "ex post facto" after all.

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