Apprendi applied to enhanced sentencing in 2003, but so did the prior-convictions exception

 State v. Perry (HSC March 8, 2023)

Background. In 2002, Jason Perry was indicted with two counts of murder in the second degree. HRS § 707-701.5 (1993). At his trial in 2003, a co-defendant testified against him. Perry took the stand and testified too. Their testimony centered around count 2 and the shooting of the possible witness to the killing of the decedent in count 1. The co-defendant testified that Perry shot the witness. Perry said it was the co-defendant.

 

The jury returned a guilty verdict for count 1 and answered a special interrogatory establishing that Perry was both a principal and accomplice in the murder. In count 2, the jury found Perry guilty as an accomplice only. The circuit court—with the Hon. Judge Karen S. Ahn presiding—gave another special interrogatory about whether the prosecution proved that Perry was carrying or using a semi-automatic weapon at the time of the killing in count 2. The jury answered that he had. This fact is needed to impose a mandatory minimum. The prosecutor objected and did not move for a mandatory minimum.

 

After the verdict, the prosecution moved for consecutive terms and life without parole on both counts pursuant to the extended sentencing statute pursuant to HRS §§ 706-656 and 706-657 (1993 & Supp. 1998). The prosecution sought life without parole in count 2 on the grounds that he was now “previously convicted” of the murder in count 1. On July 28, 2003, the circuit court granted the motion and sentenced Perry to two consecutive sentences of life without the possibility of parole. Perry appealed. The ICA affirmed. Perry petitioned for a writ of certiorari, but the HSC rejected it on the grounds that it was untimely filed.

 

Fifteen years later, Perry brought a petition in the circuit court alleging that his appellate counsel was ineffective for not filing for a writ of certiorari in time. The circuit court, now with the Hon. Judge Clarissa Malinao presiding, agreed that counsel was ineffective and ordered the ICA to vacate its judgment on appeal from 2007 and re-enter it so that Perry could apply for another writ of certiorari. The ICA did just that and Perry reapplied. This time the HSC accepted certiorari.

 

Nothing ambiguous about the count 2 verdict. The HSC made quick work of Perry’s first argument that the inapplicable and unnecessary interrogatory about the semi-automatic firearm in count 2 created confusion and ambiguity about the elements of the murder offense and accomplice liability. The HSC examined the jury instructions and found nothing “prejudicially, insufficient, erroneous, inconsistent, or misleading.” Stanely v. State, 148 Hawai'i 489, 500, 479 P.3d 107, 118 (2021). The instructions, according to the HSC, detailed the elements of murder and accomplice liability. Moreover, the HSC found nothing suggesting that the jury had a hard time following the trial court’s instructions and was “unconvinced” that the jury felt it needed to answer the firearms interrogatory as part of the guilty verdict.

 

The guilty verdicts were not “irreconcilably inconsistent.” The HSC then rejected Perry’s argument that the jury’s guilty verdict in count 2 was inconsistent. Perry argued that it is impossible to be found guilty of count 2 as an accomplice while being in possession of a semi-automatic firearm that killed the witness. When it comes to “irreconcilably inconsistent” verdicts, courts “attempt to first reconcile seemingly-inconsistent verdicts before vacatur.” State v. Bringas, 149 Hawai'i 435, 443, 494 P.3d 1168, 1176 (2021). If there is “a reasonable way to reconcile” the jury’s findings, the conviction stands. Id. The HSC explained that looking for any reasonable reconciliation of the jury’s findings is meant “to avoid speculation into the jury’s confidential deliberations and to safeguard the result of those deliberations, if at all possible.” Id.

 

The HSC applied Bringas here. An accomplice to murder can possess a firearm without pulling the trigger. Accomplice liability arises when the person has the intent to commit the offense and the person either solicits another to commit it, aids or agrees another in planning or committing it. HRS § 702-222. The HSC held that the verdict was not irreconcilably inconsistent. It was possible to find that Perry possessed a semi-automatic handgun while being an accomplice. The special interrogatory did not require that it be the murder weapon. The HSC also noted that this finding was not needed to find Perry guilty, and the prosecution did not move for a mandatory minimum so it did not prejudice Perry.

 

Expanding Bringas? The HSC applied the Bringas standard to the jury’s findings on a special interrogatory and the guilty verdict itself. Then again, it noted that that the interrogatory should have never been given and that the prosecution did not use the answer to the interrogatory against Perry. It is unclear if those are part of the Bringas analysis, which requires appellate courts to try and reconcile the findings themselves regardless of what they were used for or even if they should have been made in the first place. The standard from Bringas is ironic. Appellate courts will look for “any reasonable way to reconcile a jury’s verdicts” in order “to avoid speculation into the jury’s confidential deliberations and to safeguard the result of those deliberations, if at all possible.” Id. In other words, the appellate court will reconstruct possible rationales to reconcile the findings in order to avoid speculation. But isn’t that speculating? When Bringas came out, Justice McKenna and Justice Wilson dissented. This time around, they joined the majority. It is unclear just how far Bringas goes.

 

Apprendi rule applied sentencing enhancement for murder in the second degree. The sentence for murder in the second degree is usually life with the possibility of parole. HRS § 706-656(2). It can be enhanced to life without parole if the murder either “heinous, atrocious, or cruel, manifesting exceptional depravity” or the defendant “was previously convicted of the offense of murder in the first degree or murder in the second degree[.]” HRS § 706-657. In this case, the prosecution moved for life without parole on the grounds that Perry by virtue of the guilty verdict in count 1 was “previously convicted of the offense” of murder in the second degree. Perry argued that the finding of being previously convicted must be found by the jury and proven beyond a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). The HSC agreed that Perry can raise this challenge. The “line of demarcation” to raise Apprendi issues is the issuance of Apprendi itself back in 2000. Flubacher v. State, 142 Hawai'i 109, 118, 414 P.3d 161, 170 (2018).

 

HSC applied the Apprendi rule narrowly to the 2003 sentencing. The Sixth Amendment to the United States Constitution and Article I, Section 14 of the Hawai'i Constitution require that any fact used to extend a sentence beyond the statutory maximum is an element of the offense that must be proven beyond a reasonable doubt and found by a jury. Apprendi, 530 U.S. at 494; Flubacher, 142 Hawai'i at 118-119, 414 P.3d at 170-171. However, prior convictions are an exception to the Apprendi rule: “Other than the fact of a prior conviction, any 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, 530 U.S. at 490. See also State v. Maugaotega, 115 Hawai'i 432, 446 n. 15, 168 P.3d 562, 576 n. 15 (2007).

 

The HSC held that this prior-conviction exception applied to Perry’s sentencing hearing in 2003. The jury did not need to find that Perry was previously convicted of murder in the second degree.

 

Did the HSC apply the prior conviction exception or did the jury find that Perry had been convicted? It is unclear whether the prior-conviction exception even applied to Perry’s case. The HSC noted that prior convictions “are different” and “float outside the constitutional ambit.” But then it held that the simultaneous convictions meant that the jury did not have do anything else. Perry was eligible to sentencing under HRS § 706-657.

 

The prior conviction exception to Apprendi is on shaky ground in Hawai'i (after 2015). The HSC appears to have applied the state of the law regarding Apprendi and Maugaotega as it was in 2003. Long after Perry’s sentencing, the HSC examined the prior-conviction exception to Apprendi in the context of mandatory minimums in State v. Auld, 136 Hawai'i 244, 361 P.3d 471 (2015). There, it held that while the SCOTUS has yet to get rid of the prior-convictions exception under the Sixth Amendment, Article I, Section 14 of the Hawai'i Constitution requires the jury to “find beyond a reasonable doubt that his or her prior convictions trigger the imposition of a mandatory minimum term sentence[.]” State v. Auld, 136 Hawai'i at 254, 361 P.3d at 481. It being a new rule, the HSC held that its ruling in Auld was prospective only. It did not look backward to Auld’s own case and certainly did not reach back to Perry. Id. at 256-257, 361 P.3d at 483-484.

 

Guilty verdicts for both counts constitute “previous convictions.” The HSC also rejected Perry’s argument that he was not previously convicted by virtue of the guilty verdicts. The term “previously convicted” in HRS § 706-657 means “a sentence imposed at the same time or a sentence previously imposed which has not been set aside, reversed, or vacated.” Id. The intent is to give life without parole when the defendant commits more than one murder. Commentary to HRS § 706-657. The HSC affirmed the judgment of conviction.