The Prior-Convictions Exception has been Apprendied
State v. Auld (HSC November 24, 2015)
Background. Jayson Auld was convicted of one count of robbery in the second degree. After the verdict but before sentencing the prosecution moved to impose mandatory minimum terms of imprisonment based on a prior conviction. This was the first official notice of the State’s intention to seek the mandatory minimum. It was never pleaded in the indictment, presented to the grand jury, and presented after the verdict before the petit jury. The circuit court granted the motion and sentenced Auld to prison for a period of ten years with a mandatory minimum of 6 years and 8 months. He appealed. On appeal, Auld argued that the imposition of the mandatory minimum was in violation of his right to have each and every element proven before a jury beyond a reasonable doubt. The ICA affirmed. The HSC accepted his petition for writ of certiorari.
The Wild, Weird World of Sentencing Laws. Defendants have the constitutional right to have each and every element of an offense proven before a jury beyond a reasonable doubt. Haw. Const. Art. I, Sec. 14.; U.S. Const. Am. VI. Once a defendant was found guilty, the court would have to sentence the defendant. In sentencing the defendant, the court was free to examine facts that were not “elements.” That is, until the Supreme Court of the United States held that “[a]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466 (2000). This holding was also adopted by the HSC in State v. Maugaotega, 115 Hawaii 432, 447, 168 P.3d 562, 577 (2007). In other words, when the sentencing court was going to use a fact to increase the statutory minimum and extend the sentence pursuant to a statute, that fact was an “element” that in essence became part of the offense. It must be presented to a jury.
Apprendi marked the start of an erosion in the law. The line between sentencing factors and elements to an offense started to blur. And it wasn’t just extended sentencing facts. The SCOTUS extended Apprendi to facts that sentencing courts used to impose a mandatory minimum. Alleyne v. United States, 133 S.Ct. 2151 (2013). Now it seemed that when a fact is used to change a sentence—be it an extended sentence increasing the maximum or a mandatory minimum setting the floor.
The Curious Prior-Convictions Exception. Except for one thing: prior convictions. In Apprendi and Alleyne, the SCOTUS dodged an old exception to the change in constitutional law. A prior conviction didn’t need to be found with proof beyond a reasonable doubt by a jury. Almendarez-Torres v. United States, 523 U.S. 224 (1998); Harris v. United States, 536 U.S. 545, 560 (2002). In the wake of the changes, however, at least one justice on the SCOTUS appears to be ready to do away with this exception. DesCamps v. United States, 133 S.Ct. 2276 (2013) (Thomas, J., concurring); Shepard v. United States, 544 U.S. 13, 27 (Thomas, J., concurring).
. . . Hawaii gets Ahead of the Trend. In light of the changes in sentencing law, the HSC went ahead and did away with the prior convictions exception. Now, before a mandatory minimum can be imposed it has to be pleaded in the indictment. And after a conviction for the underlying offense, the prosecution must prove beyond a reasonable doubt that the prior conviction belongs to the defendant; the prior conviction is a “triggering” conviction under the mandatory minimum statute. HRS § 706-606.5(1) or (4). There must be proof that the conviction occurred within the time frame under HRS § 706-606.5(2), (3), or (4). Finally, there has to be evidence that during the prior conviction, the defendant was represented by counsel or waived the right to counsel. State v. Caldeira, 61 Haw. 285, 290, 602 P.2d 930, 933 (1979).
Here’s the Catch: Prospective Only. Of course, there’s a catch. Because this is a dramatic change in sentencing laws and since this was eerily similar to State v. Jess, 117 Hawaii 381, 184 P.3d 133 (2008). The HSC limited application of the new law to cases that have yet to be filed. So Auld and the others on appeal and in court seem to be without the benefit of the new rule.
Editor’s Note: I represented the Petitioner.