The Posthumous Execution of Extrinsic and Intrinsic Sentencing Factors


Flubacher v. State (HSC March 21, 2018)
Background. Robert Flubacher pleaded guilty to multiple felony offenses in three separate cases. The prosecution filed a motion for extended terms of imprisonment prior to sentencing. The circuit court granted the motion and sentenced Flubacher to life imprisonment with the possibility of parole and other terms of imprisonment. He did not appeal. Judgment became final on October 13, 2003. Two years later he filed a petition pursuant to HRPP Rule 40 collaterally attacking the sentence and that was denied. In 2014 he filed a second petition alleging an unconstitutional sentence pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court denied the petition. The ICA affirmed. Flubacher petitioned for certiorari.

The Long, Slow Death of Extrinsic and Intrinsic Factors in Hawaii. “[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. at 490. The SCOTUS held that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id.

That was in 2000. At the time, Hawaii’s legislative scheme allowed prosecutors to file presentencing motions for extended terms of imprisonment. That’s what happened in Flubacher’s case. The prosecution filed its motion and it was heard by the sentencing judge. The facts used to extend his sentence all the way to life imprisonment were not proved beyond a reasonable doubt by a jury.

The HSC rejected the first Apprendi challenge. The HSC held that there was a difference between “extrinsic” facts that are collateral to the charge and “intrinsic” facts that must be part and parcel with the offense itself. State v. Kaua, 102 Hawaii 1, 72 P.3d 473 (2003). The Kaua court clung to this distinction and held that it comported with Apprendi. The HSC held this line for another four years until State v. Maugaotega, 115 Hawaii 432, 168 P.3d 562 (2007), when it rejected the distinction and held that any fact used to extend a sentence must be pleaded and proved beyond a reasonable doubt.

When Exactly did we know that Extrinsic/Intrinsic Factors were bad law? The ICA held that for about five years it was unclear in Hawaii if Apprendi was the law of the land. According to the ICA, the “legal landscape only became clear after Apprendi (2000), Blakely [v. Washington, 542 U.S. 296] (2004), and [United States v.]Booker, [543 U.S. 220] (2005), [were] taken together.” Loher v. State, 118 Hawaii 552, 538, 193 P.3d 438, 454 (App. 2008). The HSC disagreed.

The line of demarcation is Apprendi—that is, in 2000. And so in 2003, when the sentencing court made the findings of fact that extended Flubacher’s sentence, the court violated his Sixth Amendment right pursuant to Apprendi. The HSC vacated the denial and remanded for further proceedings.

The Remedy: Sentencing Juries. The HSC rejected Flubacher’s request to resentencing without the extended term. The case was remanded back to the circuit court. If the prosecution moves for extended term sentencing, the court can empanel a jury to make the necessary findings.

Justice Nakayama’s Dissent. Justice Nakayama—the only justice on the court that heard Kaua—dissented. She believed that the majority “too easily overlooks subsequent Supreme Court decisions clarifying Apprendi and too quickly abandons our case law upholding the constitutionality of our extended sentence scheme.” By moving the line of demarcation back to 2000 it has “re-open[ed] cases that should be left final.” For Justice Nakayama, the line of demarcation should be drawn only when it was clear: January 12, 2005—after Blakely and Booker. That means that for her, Flubacher is not entitled to post-conviction relief.

Flubacher may have Opened the Floodgates. Justice Nakayama seems to think so. Perhaps the majority does too. The “line of demarcation” in extended term sentencing appears to be 2000. How many defendants were sentenced in the last 18 years that fall within these parameters? And the remedy seems to be a sentencing hearing with a jury. Perhaps we will see some strange things this summer.

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