State v. Auld. , 136 Haw. 244 ( 2015 )

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Electronically Filed
Supreme Court
SCWC-13-0002894
24-NOV-2015
08:09 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
JAYSON AULD, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0002894
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002894; CR. NO. 12-1-0690(3))
NOVEMBER 24, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
The primary1 questions presented in this case are whether
the State, in seeking to sentence a defendant to a mandatory
1
Also raised on certiorari were questions as to whether the ICA gravely
erred when it (1) determined that a “highly prejudicial hearsay statement was
admissible against” the petitioner at trial, and (2) when it “allow[ed]
prosecutors to use the opening statement to argue that essential elements of
the offense [would] be met[.]” With respect to (1), based on the ICA’s
ruling that even if the statement was hearsay, Auld’s counsel did not object,
and there may have been a reason for the lack of objection, we do not further
address the issue at this time. With respect to (2),seeing no error in the
ICA’s disposition of the issue, we do not further address it.
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minimum sentence as a repeat offender under Hawaii Revised
Statutes (“HRS”) § 706-606.5 (2014)2, (1) must include the
2
That statute provides, in full, the following:
Sentencing of repeat offenders. (1) Notwithstanding section 706-669 and
any other law to the contrary, any person convicted of murder in the second
degree, any class A felony, any class B felony, or any of the following class
C felonies: section 134-7 relating to persons prohibited from owning,
possessing, or controlling firearms or ammunition; section 134-8 relating to
ownership, etc., of certain prohibited weapons; section 134-17 only as it
relates to providing false information or evidence to obtain a permit under
section 134-9; section 188-23 relating to possession or use of explosives,
electrofishing devices, and poisonous substances in state waters; section
386-98(d)(1) relating to fraud violations and penalties; section 431:2-
403(b)(2) relating to insurance fraud; section 707-703 relating to negligent
homicide in the second degree; section 707-711 relating to assault in the
second degree; section 707-713 relating to reckless endangering in the first
degree; section 707-716 relating to terroristic threatening in the first
degree; section 707-721 relating to unlawful imprisonment in the first
degree; section 707-732 relating to sexual assault in the third degree;
section 707-752 relating to promoting child abuse in the third degree;
section 707-757 relating to electronic enticement of a child in the second
degree; section 707-766 relating to extortion in the second degree; section
708-811 relating to burglary in the second degree; section 708-821 relating
to criminal property damage in the second degree; section 708-831 relating to
theft in the second degree; section 708-835.5 relating to theft of livestock;
section 708-836 relating to unauthorized control of propelled vehicle;
section 708-839.55 relating to unauthorized possession of confidential
personal information; section 708-839.8 relating to identity theft in the
third degree; section 708-852 relating to forgery in the second degree;
section 708-854 relating to criminal possession of a forgery device; section
708-875 relating to trademark counterfeiting; section 710-1071 relating to
intimidating a witness; section 711-1103 relating to riot; section 712-1221
relating to promoting gambling in the first degree; section 712-1224 relating
to possession of gambling records in the first degree; section 712-1243
relating to promoting a dangerous drug in the third degree; section 712-1247
relating to promoting a detrimental drug in the first degree; section 846E-9
relating to failure to comply with covered offender registration
requirements, or who is convicted of attempting to commit murder in the
second degree, any class A felony, any class B felony, or any of the class C
felony offenses enumerated above and who has a prior conviction or prior
convictions for the following felonies, including an attempt to commit the
same: murder, murder in the first or second degree, a class A felony, a class
B felony, any of the class C felony offenses enumerated above, or any felony
conviction of another jurisdiction, shall be sentenced to a mandatory minimum
period of imprisonment without possibility of parole during such period as
follows:
(a) One prior felony conviction:
(i) Where the instant conviction is for murder in the
second degree or attempted murder in the second degree--ten
years;
(continued. . .)
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(. . . continued)
(ii) Where the instant conviction is for a class A felony--
six years, eight months;
(iii) Where the instant conviction is for a class B felony-
-three years, four months; and
(iv) Where the instant conviction is for a class C felony
offense enumerated above--one year, eight months;
(b) Two prior felony convictions:
(i) Where the instant conviction is for murder in the
second degree or attempted murder in the second degree--
twenty years;
(ii) Where the instant conviction is for a class A felony--
thirteen years, four months;
(iii) Where the instant conviction is for a class B felony-
-six years, eight months; and
(iv) Where the instant conviction is for a class C felony
offense enumerated above--three years, four months;
(c) Three or more prior felony convictions:
(i) Where the instant conviction is for murder in the
second degree or attempted murder in the second degree--
thirty years;
(ii) Where the instant conviction is for a class A felony--
twenty years;
(iii) Where the instant conviction is for a class B felony-
-ten years; and
(iv) Where the instant conviction is for a class C felony
offense enumerated above--five years.
(2) Except as in subsection (3), a person shall not be sentenced to a
mandatory minimum period of imprisonment under this section unless the
instant felony offense was committed during such period as follows:
(a) Within twenty years after a prior felony conviction where the
prior felony conviction was for murder in the first degree or
attempted murder in the first degree;
(b) Within twenty years after a prior felony conviction where the
prior felony conviction was for murder in the second degree or
attempted murder in the second degree;
(c) Within twenty years after a prior felony conviction where the
prior felony conviction was for a class A felony;
(d) Within ten years after a prior felony conviction where the
prior felony conviction was for a class B felony;
(e) Within five years after a prior felony conviction where the
prior felony conviction was for a class C felony offense
enumerated above;
(f) Within the maximum term of imprisonment possible after a
prior felony conviction of another jurisdiction.
(3) If a person was sentenced for a prior felony conviction to a
special term under section 706-667, then the person shall not be
sentenced to a mandatory minimum period of imprisonment under this
section unless the instant felony offense was committed during such
period as follows:
(a) Within eight years after a prior felony conviction where the
prior felony conviction was for a class A felony;
(b) Within five years after the prior felony conviction where the
prior felony conviction was for a class B felony;
(continued. . .)
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defendant’s predicate prior convictions in a charging
instrument; and (2) must prove these prior convictions to a
(. . . continued)
(c) Within four years after the prior felony conviction where the
prior felony conviction was for a class C felony offense
enumerated above.
(4) Notwithstanding any other law to the contrary, any person convicted
of any of the following misdemeanor offenses:
(a) Section 707-712 relating to assault in the third degree;
(b) Section 707-717 relating to terroristic threatening in the
second degree;
(c) Section 707-733 relating to sexual assault in the fourth
degree;
(d) Section 708-822 relating to criminal property damage in the
third degree;
(e) Section 708-832 relating to theft in the third degree; and
(f) Section 708-833.5(2) relating to misdemeanor shoplifting,
and who has been convicted of any of the offenses enumerated
above on at least three prior and separate occasions within three
years of the date of the commission of the present offense, shall
be sentenced to no less than nine months of imprisonment.
Whenever a court sentences a defendant under this subsection for
an offense under section 707-733, the court shall order the
defendant to participate in a sex offender assessment and, if
recommended based on the assessment, participate in the sex
offender treatment program established by chapter 353E.
(5) The sentencing court may impose the above sentences consecutive to
any sentence imposed on the defendant for a prior conviction, but such
sentence shall be imposed concurrent to the sentence imposed for the
instant conviction. The court may impose a lesser mandatory minimum
period of imprisonment without possibility of parole than that mandated
by this section where the court finds that strong mitigating
circumstances warrant such action. Strong mitigating circumstances
shall include, but shall not be limited to the provisions of section
706-621. The court shall provide a written opinion stating its reasons
for imposing the lesser sentence.
(6) A person who is imprisoned in a correctional institution pursuant
to subsection (1) shall not be paroled prior to the expiration of the
mandatory minimum term of imprisonment imposed pursuant to subsection
(1).
(7) For purposes of this section:
(a) Convictions under two or more counts of an indictment or
complaint shall be considered a single conviction without regard
to when the convictions occur;
(b) A prior conviction in this or another jurisdiction shall be
deemed a felony conviction if it was punishable by a sentence of
death or of imprisonment in excess of one year; and
(c) A conviction occurs on the date judgment is entered.
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jury, beyond a reasonable doubt. We answer both questions in
the affirmative.
This appeal surfaces in the wake of the sea change in state
sentencing procedure brought on by the United States Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
In that case, the Court held, “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.” 530 U.S. at 489.
We adopted this holding in State v. Maugaotega, 115 Hawaii 432,
447, 168 P.3d 562, 577 (2007), with respect to our state’s
extended sentencing procedures, which were subsequently codified
at HRS §§ 706-661, -662, and -664 (2014).
Recently, the United States Supreme Court extended the
Apprendi rule to mandatory minimum sentencing. See Alleyne v.
United States, 133 S. Ct. 2151 (2013). Alleyne held
Any fact that, by law, increases the penalty for a crime is
an “element” that must be submitted to the jury and found
beyond a reasonable doubt. See [Apprendi, 523 U.S. at 483,
n.10, 490] Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that
increases the mandatory minimum is an “element” that must
be submitted to the jury.
133 S. Ct. at 2155. Our appellate case law currently holds that
the Apprendi rule does not apply to mandatory minimum
sentencing. See State v. Gonsalves, 108 Hawaii 289, 297, 119
P.3d 597, 605 (2005) (“Apprendi does not apply to mandatory
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minimums[.]”); State v. Loher, 118 Hawaii 522, 534 n.8, 193 P.3d
438, 450 n.8 (App. 2008) (“Apprendi only applies to penalties
that increase the maximum statutory incarceration period, not
set a mandatory minimum like HRS § 706-606.5.”). This holding
has now been implicitly called into question by Alleyne.
We acknowledge that Alleyne did not involve mandatory
minimum sentencing based on prior convictions, as Auld’s case
does. We also acknowledge that the Apprendi rule contains an
exception for the “fact of prior conviction” to its requirement
that a jury find, beyond a reasonable doubt, those facts
enhancing a defendant’s sentence. It was not until this case,
however, that we have had the opportunity to directly address
whether Apprendi’s “fact of prior conviction” exception has a
place within our repeat offender mandatory minimum sentencing
scheme. We hold that it does not.
This is because repeat offender sentencing under HRS
§ 706-606.5 requires more than just a finding of the “fact” of
prior conviction. In order to sentence a defendant as a repeat
offender, the State must prove (1) that the defendant has a
prior conviction (or convictions); (2) that a prior conviction
is specifically enumerated under HRS § 706-606.5(1) or (4); (3)
that a prior conviction occurred within the time frame set forth
under HRS § 706-606.5(2), (3), or (4); and (4) that the
defendant was represented by counsel, or had waived such
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representation, at the time of the prior conviction. See State
v. Caldeira, 61 Haw. 285, 290, 602 P.2d 930, 933 (1979) (per
curiam); State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929
(1979) (per curiam). Therefore, as a matter of state law, the
Apprendi “fact of prior conviction” exception does not apply to
prior convictions forming the basis of repeat offender
sentencing pursuant to HRS § 706-606.5. As a result, a
defendant is entitled to have a jury find, beyond a reasonable
doubt, those facts necessary to show that he or she is subject
to repeat offender sentencing under HRS § 706-606.5.
Further, our case law interpreting article I, sections 5
and 10 of the Hawaii Constitution3 requires “a charging
instrument, be it an indictment, complaint, or information,
[to] include all ‘allegations, which if proved, would result in
the application of a statute enhancing the penalty of the crime
committed.’” State v. Jess, 117 Hawaii 381, 398, 184 P.3d 133,
150 (2008) (citations omitted). Five years after we issued
3
Article I, section 5 of the Hawaii Constitution provides, “No person
shall be deprived of life, liberty or property without due process of law,
nor be denied the equal protection of the laws, nor be denied the enjoyment
of the person’s civil rights or be discriminated against in the exercise
thereof because of race, religion, sex or ancestry.”
Article I, section 10 of the Hawaii Constitution provides, in relevant
part, the following:
No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury or upon a finding of probable
cause after a preliminary hearing held as provided by law
or upon information in writing signed by a legal
prosecuting officer under conditions and in accordance with
procedures that the legislature may provide. . . .
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Jess, the United States Supreme Court in Alleyne clearly held
that “[m]andatory minimum sentences increase the penalty for a
crime.” 133 S. Ct. at 2155. In the wake of Alleyne, then, we
are compelled to hold that repeat offender sentencing under HRS
§ 706-606.5 “enhanc[es] the penalty of the crime committed.”
Consequently, under article I, sections 5 and 10 of the Hawaii
Constitution, a defendant’s predicate prior conviction(s) must
be alleged in the charging instrument.
We are aware that our holdings today announce new rules for
repeat offender charging and sentencing in Hawaii pursuant to
HRS § 706-606.5. Consequently, our new holdings take effect
prospectively only. The ICA’s judgment on appeal, which
affirmed the Circuit Court of the Second Circuit’s4 (“circuit
court”) judgment of conviction and sentence, is therefore
affirmed.
II. Trial Court Proceedings
Petitioner/Defendant-Appellant Jayson Auld was charged by
indictment with committing Robbery in the Second Degree. It is
undisputed that Auld’s indictment did not allege that he had any
prior convictions. A jury found Auld guilty as charged. That
jury was not asked to find, and did not find, beyond a
reasonable doubt, that Auld had any prior convictions. After
4
The Honorable Joseph E. Cardoza presided.
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Auld was convicted, the State filed its Motion for Imposition of
Mandatory Minimum Period of Imprisonment. The State requested
that Auld be sentenced, as a repeat offender, to a mandatory
minimum period of imprisonment of “SIX (6) YEARS, and, EIGHT (8)
MONTHS without the possibility of parole,” pursuant to HRS
§ 706-606.5(1)(b)(iii). The State averred that Auld had been
convicted in 2011 of one count of Unauthorized Control of a
Propelled Vehicle and one count of Promoting a Dangerous Drug in
the Third Degree. The State attached as an exhibit to its
motion a copy of Auld’s judgment of conviction and probation
sentence reflecting both prior convictions.
Auld’s Opposition to the State’s motion did not argue that
his prior convictions were required to be found by a jury beyond
a reasonable doubt (or charged in the indictment); instead, he
argued that strong mitigating circumstances warranted a lesser
mandatory minimum period of imprisonment.
At the sentencing hearing, the State called Auld’s
probation officer. The State introduced into evidence the
“self-authenticating sealed and certified judgment for Jayson
Auld” for his prior convictions. Auld’s counsel did not object,
and the circuit court received the document into evidence.
Auld’s probation officer testified as to what the underlying
offenses were, and Auld’s counsel did not cross-examine him.
The circuit court also took judicial notice of the records on
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file for both of Auld’s prior cases, and asked the State and
Auld if they objected; neither did. The circuit court also
noted that it was the court that presided over those prior
cases.
The circuit court granted the State’s Motion for Imposition
of Mandatory Minimum Period of Imprisonment, sentencing Auld to
ten years of incarceration, with credit for time served, subject
to the mandatory minimum of six years and eight months as a
repeat offender. Auld timely appealed.
III. ICA Appeal
A. Opening Brief
Relevant to the issues presented on certiorari, Auld argued
for the first time on appeal that the circuit court “violated
[his] Sixth Amendment and Due Process Rights when it granted the
prosecution’s post-verdict motion for the mandatory minimum term
of imprisonment.” Auld cited Alleyne as authority for his
argument that a jury should have considered the facts alleged in
the prosecution’s motion for imposition of a mandatory minimum
sentence; he cited Jess as authority for his argument that those
facts should have also been alleged in the indictment. He asked
the ICA to remand his case for resentencing consistent with the
jury’s verdict, i.e., without the mandatory minimum sentence.
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B. Answering Brief
The State distinguished Alleyne, factually and legally,
from the instant case. The State correctly pointed out that
Alleyne involved 18 U.S.C. § 924(c)(1)(A), which requires a
mandatory minimum sentence of imprisonment of five years for a
person who “uses or carries” a firearm in relation to a crime of
violence, seven years if the firearm is “brandished,” and ten
years if the firearm is “discharged.” 133 S. Ct. at 2155-56.
Although the jury found that Alleyne had “used or carried,” but
not “brandished” a firearm, the district court found that
Alleyne brandished a firearm and sentenced him to a mandatory
minimum of seven years imprisonment. 133 S. Ct. at 2156. The
United States Supreme Court held that the district court’s
judicial fact-finding of “brandishing” violated Alleyne’s Sixth
Amendment right to have a jury find, beyond a reasonable doubt,
those facts aggravating the punishment for a crime. 133 S. Ct.
at 2161-62. The State also noted that the Alleyne court stated
that its holding “d[id] not mean that any fact that influences
judicial discretion must be found by a jury.” 133 S. Ct. at
2163. In the instant appeal, the State appeared to argue that
Auld’s prior convictions did not need to be found by a jury
beyond a reasonable doubt in order for the circuit court to have
sentenced him to a mandatory minimum sentence as a repeat
offender.
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Citing State v. Drozdowski, 9 Haw. App. 583, 585, 854 P.2d
238, 240 (1993), the State also argued that “ordinary sentencing
procedures apply to the mandatory minimum sentencing hearing.”
Under State v. Mara, 102 Hawaii 346, 368, 76 P.3d 589, 611 (App.
2003), the State argued, such “ordinary sentencing procedures”
include the “abuse of discretion” standard as the standard for
appellate review of the trial court’s imposition of a mandatory
minimum sentence.
C. Reply Brief
Auld contended that the State appeared to be “relying on
the so-called prior-convictions exception to Apprendi,”5 which he
argued “no longer holds sway in light of Alleyne and our own
supreme court’s precedent.” Auld traced the prior conviction
exception to Almendarez-Torres v. United States, 523 U.S. 224
(1998), which he claimed “underwent great scrutiny in Apprendi,”
with the United States Supreme Court noting that the case was
“arguabl[y] . . . incorrectly decided.” 530 U.S. at 489. He
then cited Justice Thomas’s concurrence in DesCamps v. United
States, 133 S. Ct. 2276 (2013), as evidence that the prior
conviction exception is inconsistent with the Sixth Amendment.
Justice Thomas stated, “Under the logic of Apprendi, a court may
5
The Apprendi holding sets forth the prior conviction exception as
follows: “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.” 530 U.S. at 489
(emphasis added).
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not find facts about a prior conviction when such findings
increase the statutory maximum. This is so whether a court is
determining a prior conviction was entered, or attempting to
discern what facts were necessary to a prior conviction.” 133
S. Ct. at 2294 (Thomas, J., concurring).
Auld also asserted that this court has “never carved out an
exception for facts relating to prior convictions” in requiring
that “a charging instrument, be it an indictment, complaint, or
information, . . . include all allegations, which if proved,
would result in the application of a statute enhancing the
penalty of the crime committed.” Jess, 117 Hawaii at 398, 184
P.3d at 150 (citations and quotation marks omitted). In other
words, Auld argued that a defendant’s prior convictions must be
alleged in a charging instrument in order for him to be
sentenced to a mandatory minimum term of imprisonment as a
repeat offender.
D. The ICA’s SDO
The ICA affirmed Auld’s judgment of conviction and sentence
in a summary disposition order (SDO). State v. Auld, CAAP-13-
0002894 (App. Jan, 27, 2015) (SDO) at 2. The ICA found “without
merit” Auld’s sentencing arguments, relying on the prior
conviction exception. Auld, SDO at 3-4. The ICA noted that the
prior conviction exception remained undisturbed in Alleyne and
was “expressly recognized” by this court in Maugaotega, 115
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Hawaii at 446-47 & n.15, 168 P.3d at 576-77 & n.15 (“The United
States Supreme Court has always exempted prior convictions from
the Apprendi rule[.] . . . . The Court bases the exception on
the fact that prior convictions have themselves been subject to
the sixth amendment right to a jury trial and the accompanying
requirement of proof beyond a reasonable doubt.”). Id.
As to Auld’s contention that due process required that his
prior convictions be alleged in the indictment, the ICA noted
that this court in Jess, 117 Hawaii at 397-98, 184 P.3d at 149-
50, “cited favorably to the federal standard that prior
convictions are an exception to the mandate to include sentence
enhancements in the charging instrument.” Auld, SDO at 4. The
ICA also concluded that State v. Freitas, 61 Haw. 262, 277, 602
P.2d 914, 925 (1979), requires only that a defendant sentenced
under HRS § 706-606.5 be given “reasonable notice and afforded
the opportunity to be heard,” and that due process “does not
require that notice be given prior to the trial of the
underlying offense. . . .” Auld, SDO at 4. In the instant
case, the ICA reasoned that Auld had an opportunity to oppose
the State’s motion for imposition of a mandatory minimum
sentence, was represented by counsel at the hearing on that
motion, and did not object to the circuit court’s receiving his
sealed and certified judgment of conviction into evidence and
taking judicial notice of the record in both prior convictions.
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Id. Therefore, the ICA concluded, Auld’s due process rights
were not violated. Id.
IV. Standard of Review
This court reviews questions of constitutional law under
the right/wrong standard of review. See State v. Toyomura, 80
Hawaii 8, 15, 904 P.2d 893, 900 (1995).
V. Discussion
On certiorari, Auld raises the following question:
Did the Intermediate Court of Appeals gravely err in
concluding that an exception to Apprendi v. New Jersey
allows sentencing courts to impose mandatory minimum terms
of imprisonment based on facts that were never established
with proof beyond a reasonable doubt, found by a jury, and
adequately pleaded in the indictment?
[App. at PDF p. 2] On certiorari, Auld criticizes the ICA’s
reliance on Apprendi’s prior conviction exception. Auld again
traces the prior conviction exception to Almendarez-Torres, 523
U.S. 224, and argues that the exception has “fallen out of favor
in federal courts and its continued viability there is
uncertain.” To demonstrate the decline of the Almendarez-Torres
holding, Auld first points to the dissent in that case, which
stated that “there is no rational basis for making recidivism an
exception” to the requirement that sentencing facts be proven to
a jury beyond a reasonable doubt. 523 U.S. at 258 (Scalia, J.,
dissenting). He again points to the Apprendi opinion itself,
which declined to revisit the Almendarez-Torres prior conviction
exception, but nevertheless noted, “[I]t is arguable that
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Almendarez-Torres was incorrectly decided, and that a logical
application of our reasoning today should apply if the
recidivist issue were contested, [but] Apprendi does not contest
the decision’s validity and we need not revisit it[.]” 530 U.S.
at 489. Auld again cites to Justice Thomas’s concurrence in
DesCamps, 133 S. Ct. 2276 (Thomas, J., concurring), as well as
Shepard v. United States, 544 U.S. 13, 27-28 (Thomas, J.,
concurring) (“Almendarez-Torres . . . has been eroded by the
Court’s subsequent Sixth Amendment jurisprudence, and a majority
of the Court now recognizes that Almendarez-Torres was wrongly
decided. . . . Innumerable criminal defendants have been
unconstitutionally sentenced under the flawed rule of
Almendarez-Torres[.]”) (citation omitted); and United States v.
Torres-Alvarado, 416 F.3d 808, 810 (8th Cir. 2005) (“[I]t is
unclear whether Almendarez-Torres and its felony exception will
remain good law[.]”) (citation omitted).
Auld argues that this court should grant greater
protections to criminal defendants under Article I, Section 14
of the Hawaii Constitution, which provides, in relevant part,
“In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial by an impartial jury . . . [and] be
informed of the nature and cause of the accusation. . . .” He
contends that a prior conviction “must be treated like any other
fact –- the prosecution must establish it beyond a reasonable
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doubt before a jury and include it in the indictment before a
sentencing court can use it to impose a mandatory minimum term
of imprisonment.” Auld cites Jess, 117 Hawaii 381, 184 P.3d
133, for the proposition that prior convictions must be pleaded
in the indictment before they can form the basis of a mandatory
minimum sentence. He cites Alleyne and the Hawaii Constitution
for the proposition that a predicate prior conviction is a fact
that must be submitted to a jury and proven beyond a reasonable
doubt.
Auld’s arguments are persuasive, primarily because of the
change to our case law that Alleyne now compels. To provide the
backdrop for the new rules we announce today, we take a closer
look at that case. In Alleyne, the sentencing statute at issue
was 18 U.S.C. § 924(c)(1)(A), which states the following:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime--
(i) be sentenced to a term of imprisonment of not less than
5 years;
(ii) if the firearm is brandished, be sentenced to a term
of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term
of imprisonment of not less than 10 years.
(Emphases added). The jury who convicted Alleyne found only
that he “used or carried” a firearm, and did not find that he
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“brandished” a firearm, beyond a reasonable doubt; therefore,
based on these jury-found facts, Alleyne was subject to only the
five-year mandatory minimum term. 133 S. Ct. at 2156. The
district court judge, on the other hand, found that Alleyne
brandished the firearm by a preponderance of the evidence and
sentenced him to the seven-year mandatory minimum term. Id. In
holding that the district court violated Alleyne’s Sixth
Amendment right, the United States Supreme Court extended the
Apprendi rule to mandatory minimum term sentencing as follows:
Any fact that, by law, increases the penalty for a crime is
an “element” that must be submitted to the jury and found
beyond a reasonable doubt. See [Apprendi, 530 U.S. at 483,
n.10, 490] Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that
increases the mandatory minimum is an “element” that must
be submitted to the jury.
133 S. Ct. at 2155. In other words, “Apprendi’s definition of
‘elements’ necessarily includes not only facts that increase the
ceiling [i.e., the statutory maximum sentence a defendant can
receive], but also those that increase the floor [i.e., the
mandatory minimum sentence a defendant can receive].” 133 S. Ct.
at 2158.
Alleyne’s holding extending the Apprendi rule to mandatory
minimum sentences calls into question two of our appellate
decisions, Loher, 118 Hawaii 522, 193 P.3d 438, and Gonsalves,
108 Hawaii 289, 119 P.3d 597. In Loher, the ICA observed in a
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footnote that a Rule 40 petitioner’s repeat offender mandatory
minimum sentence did not violate the rule in Apprendi:
Loher was also sentenced to a mandatory minimum of thirteen
years and four months, pursuant to HRS § 706-606.5, as a
repeat offender. Apprendi and its progeny are not
applicable to HRS § 706-606.5 because only facts other than
a finding of prior convictions must be found by a jury.
Only a finding of prior convictions is required to apply
HRS § 706-606.5. In addition, Apprendi only applies to
penalties that increase the maximum statutory incarceration
period, not set a mandatory minimum like HRS § 706-606.5.
118 Hawaii at 534 n.8, 193 P.3d at 450 n.8 (citations omitted).
This observation is consistent with this court’s earlier holding
in Gonsalves, 108 Hawaii at 297, 119 P.3d at 605, that “Apprendi
does not apply to mandatory minimums[.]” The Gonsalves court
drew upon Harris v. United States, 536 U.S. 545 (2002), for its
holding, which it summarized as follows:
Gonsalves’s argument that somehow the jury’s verdict did
not authorize sentencing him to a mandatory minimum term as
a repeat offender is unfounded. Apprendi pronounced a rule
regarding the judge-imposed penalties that increase
statutory maximum sentences, not mandatory minimum
sentences, because the judicial factfinding “that gives
rise to a mandatory minimum sentence . . . does not expose
a defendant to a punishment greater than otherwise legally
prescribed.”
Gonsalves, 108 Hawaii at 296, 119 P.3d at 604 (citing Harris,
536 U.S. at 565). Harris, however, was overruled by Alleyne.
Alleyne, 133 S. Ct. at 2155. In fact, the United States Supreme
Court specifically accepted certiorari in Alleyne to consider
overruling Harris. Id. In overruling Harris, the United States
Supreme Court explained, “Harris drew a distinction between
facts that increase the statutory maximum and facts that
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increase only the mandatory minimum. We conclude that this
distinction is inconsistent with our decision in Apprendi . . .
and with the original meaning of the Sixth Amendment.” Id.
Thus, this court’s statement in Gonsalves, as well as the ICA’s
footnote in Loher, that Apprendi does not apply in mandatory
minimum term sentencing is no longer true.
Our analysis does not end here, however, as repeat offender
sentencing under HRS § 706-606.5 is based solely on a
defendant’s prior conviction(s), and the Apprendi rule excepts
the “fact of prior conviction” from the requirement that a jury
find, beyond a reasonable doubt, those facts increasing the
penalty for a crime. Apprendi, 530 U.S. at 489. We have
favorably cited to Apprendi’s general rule and its prior
conviction exception in the context of extended term sentencing
under HRS §§ 706-661, -662, and -664. See Maugaotega, 115 Haw.
at 446 n.15, 168 P.3d at 576 n.15 (citations omitted):
The United States Supreme Court has always exempted prior
convictions from the Apprendi rule: “[T]he Federal
Constitution’s jury-trial guarantee proscribes a sentencing
scheme that allows a judge to impose a sentence above the
statutory maximum based upon a fact, other than a prior
conviction, not found by a jury or admitted by the
defendant.” The Court bases the exception on the fact that
prior convictions have themselves been subject to the sixth
amendment right to a jury trial and the accompanying
requirement of proof beyond a reasonable doubt.
(Emphasis in original; citations omitted). See also Jess, 117
Hawaii at 394, 184 P.3d at 146 (“[E]xcept for prior convictions,
multiple convictions, and admissions, ‘any fact, however
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labeled, that serves as a basis for an extended term sentence
must be proved beyond a reasonable doubt to the trier of
fact.’”) (citing Maugaotega, 115 Hawaii at 447 & n.15, 184 P.3d
at 577 & n.15) (emphasis in original); State v. Keohokapu, 127
Hawaii 91, 108, 276 P.3d 660, 677 (2012) (citing Maugaotega, 115
Hawaii at 442, 168 P.3d at 572; and Jess, 117 Hawaii at 394, 184
P.3d at 146).
It was not until this case, however, that we scrutinized
Apprendi’s “fact of prior conviction” exception. This may be
because Maugaotega, Jess, and Keohokapu all involved extended
term sentencing under HRS §§ 706-661, -662, and -664. Under HRS
§ 706-662, a defendant convicted of a felony may be subject to
an extended term of imprisonment if a jury finds, beyond a
reasonable doubt, the primary fact that an extended term of
imprisonment is “necessary for the protection of the public” and
that the convicted defendant satisfies one or more of the
following criteria, most of which involve factual findings other
than prior convictions:
(1) The defendant is a persistent offender in that the
defendant has previously been convicted of two or more
felonies committed at different times when the defendant
was eighteen years of age or older;
(2) The defendant is a professional criminal in that:
(a) The circumstances of the crime show that the
defendant has knowingly engaged in criminal activity
as a major source of livelihood; or
(b) The defendant has substantial income or resources
not explained to be derived from a source other than
criminal activity;
(3) The defendant is a dangerous person in that the
defendant has been subjected to a psychiatric or
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psychological evaluation that documents a significant
history of dangerousness to others resulting in criminally
violent conduct, and this history makes the defendant a
serious danger to others. Nothing in this section precludes
the introduction of victim-related data to establish
dangerousness in accord with the Hawaii rules of evidence;
(4) The defendant is a multiple offender in that:
(a) The defendant is being sentenced for two or more
felonies or is already under sentence of imprisonment
for any felony; or
(b) The maximum terms of imprisonment authorized for
each of the defendant's crimes, if made to run
consecutively, would equal or exceed in length the
maximum of the extended term imposed or would equal
or exceed forty years if the extended term imposed is
for a class A felony;
(5) The defendant is an offender against the elderly,
handicapped, or a minor eight years of age or younger in
that:
(a) The defendant attempts or commits any of the
following crimes: murder, manslaughter, a sexual
offense that constitutes a felony under chapter 707,
robbery, felonious assault, burglary, or kidnapping;
and
(b) The defendant, in the course of committing or
attempting to commit the crime, inflicts serious or
substantial bodily injury upon a person who has the
status of being:
(i) Sixty years of age or older;
(ii) Blind, a paraplegic, or a quadriplegic; or
(iii) Eight years of age or younger; and
the person's status is known or reasonably should be
known to the defendant; or
(6) The defendant is a hate crime offender in that:
(a) The defendant is convicted of a crime under
chapter 707, 708, or 711; and
(b) The defendant intentionally selected a victim or,
in the case of a property crime, the property that
was the object of a crime, because of hostility
toward the actual or perceived race, religion,
disability, ethnicity, national origin, gender
identity or expression, or sexual orientation of any
person. For purposes of this subsection, "gender
identity or expression" includes a person's actual or
perceived gender, as well as a person's gender
identity, gender-related self-image, gender-related
appearance, or gender-related expression, regardless
of whether that gender identity, gender-related self-
image, gender-related appearance, or gender-related
expression is different from that traditionally
associated with the person's sex at birth.
Amidst this comprehensive list of other facts to be found by a
jury, perhaps adopting the “fact of prior conviction” exception
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in the extended term context was just a natural consequence of
adopting Apprendi’s general rule. See Maugaotega, 115 Hawaii at
446 n.15, 168 P.3d at 576 n.15 (positing that the prior
conviction exception would apply to multiple concurrent
convictions under HRS § 706-662(4), while acknowledging that
“the [Hawaii Supreme] Court has never directly addressed the
issue” of the application of Apprendi’s prior conviction
exception.)
Because a mandatory minimum sentence as a repeat offender
under HRS § 706-606.5 is warranted solely on the basis of prior
convictions, however, whether the Apprendi “fact of prior
conviction” exception truly fits within our state’s statutory
sentencing scheme comes into sharper focus in this appeal. We
hold that repeat offender sentencing under HRS § 706-606.5
involves more than a simple finding of the “fact” of prior
conviction, thereby removing it from Apprendi’s “fact of prior
conviction” exception. First, it must be proven that a prior
conviction belongs to the defendant. Second, the prior
conviction must be enumerated under HRS § 706-606.5(1) or (4).
Third, the prior conviction must have occurred within the time
frame set forth under HRS §§ 706-606.5(2), (3), or (4). Lastly,
Hawaii case law requires proof that a defendant subject to
mandatory minimum sentencing as a repeat offender was
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represented by counsel, or had waived such representation, at
the time of the prior conviction. See Caldeira, 61 Haw. at 290,
602 P.2d at 933; Afong, 61 Haw. at 282, 602 P.2d at 929.
Therefore, as a matter of state law, the Apprendi “fact of prior
conviction” exception does not apply to prior convictions
forming the basis of repeat offender sentencing pursuant to HRS
§ 706-606.5.6
Loher and Gonsalves are hereby overruled to the extent each
held that the Apprendi rule applies only to extended term
sentencing under HRS §§ 706-661, -662, and -664, and not to
repeat offender mandatory minimum term sentencing under HRS
§ 706-606.5. Loher, 118 Hawaii at 534 n.8, 193 P.3d at 450 n.8
(citations omitted); Gonsalves, 108 Hawaii at 297, 119 P.3d at
605. Loher is further overruled to the extent it held that
Apprendi’s prior conviction exception would obviate any need for
a defendant’s predicate prior convictions to be found by a jury.
Loher, 118 Hawaii at 534 n.8, 193 P.3d at 450 n.8 (citations
omitted). As a result, a defendant is entitled to have a jury
find beyond a reasonable doubt that his or her prior convictions
6
Consequently, although we agree with Auld (and with amicus curiae the
Office of the Public Defender) that the United States Supreme Court will
eventually overturn Almendarez-Torres and sweep away the prior conviction
exception, we reach our holding today based on “adequate and independent
state grounds.” See Michigan v. Long, 463 U.S. 1032, 1041-42 (1983).
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trigger the imposition of a mandatory minimum sentence as a
repeat offender under HRS § 706-606.5.
With these protections in place, repeat offender sentencing
under HRS § 706-606.5, like extended term sentencing under HRS
§§ 706-661, -662 and -664, cannot be considered an “ordinary
sentencing” situation. Consequently, to the extent it held
otherwise, Drozdowski, 9 Haw. App. at 585, 854 P.2d at 240, is
hereby overruled. Further, whether a defendant was sentenced as
a repeat offender consistent with the protections afforded him
under the Hawaii Constitution shall be reviewed under the
right/wrong standard. Lastly, we note that our holding affects
HRS § 706-666 (2014), titled, “Definition of proof of
conviction.” That statute provides
(1) An adjudication by a court of competent
jurisdiction that the defendant committed a crime
constitutes a conviction for purposes of sections 706-
606.5, 706-662, and 706-665, although sentence or the
execution thereof was suspended, provided that the
defendant was not pardoned on the ground of innocence.
(2) Prior conviction may be proved by any evidence,
including fingerprints records made in connection with
arrest, conviction, or imprisonment, that reasonably
satisfies the court that the defendant was convicted.
(Emphasis added). With regard to repeat offender sentencing
under HRS § 706-606.5, proof of prior conviction must be found
by a jury beyond a reasonable doubt, not by the court under a
“reasonabl[e] satisf[action]” standard.
On the issue of whether the prosecution must allege in the
charging instrument that the defendant has prior convictions for
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purposes of repeat offender sentencing, our case law
interpreting article I, sections 5 and 10 of the Hawaii
Constitution requires “a charging instrument, be it an
indictment, complaint, or information, [to] include all
‘allegations, which if proved, would result in the application
of a statute enhancing the penalty of the crime committed.’”
Jess, 117 Hawaii at 398, 184 P.3d at 150 (citations omitted).
Alleyne clearly held that “[m]andatory minimum sentences
increase the penalty for a crime.” 133 S. Ct. at 2155. In the
wake of Alleyne, then, we are compelled to hold that repeat
offender sentencing under HRS § 706-606.5 “enhanc[es] the
penalty of the crime committed.” Therefore, under article I,
sections 5 and 10 of the Hawaii Constitution, the predicate
prior conviction(s) must be alleged in the charging instrument
in order for the defendant to ultimately be sentenced as a
repeat offender.
Our case law on HRS § 706-606.5 has consistently emphasized
that due process requires the State to give a defendant
reasonable notice and an opportunity to be heard on the issue of
mandatory minimum sentencing as a repeat offender. State v.
Schroeder, 76 Hawaii 517, 880 P.2d 192 (1994) (citing Freitas,
61 Haw. at 277, 602 P.2d at 915; State v. Caldeira, 61 Haw. 285,
289, 602 P.2d 930, 933 (1979); and State v. Melear, 63 Haw. 488,
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499, 630 P.2d 619, 627-28 (1981)). Freitas, however, held
“While due process does not require that notice be given prior
to the trial of the underlying offense, it does require that a
defendant to be sentenced under Act 181 [codifying the repeat
offender statute] be given reasonable notice and afforded the
opportunity to be heard.” 61 Haw. at 277, 602 P.2d at 925)
(citations omitted). See also Caldeira, 61 Haw. at 289-90, 602
P.2d at 933 (following Freitas and holding the notice
requirements were satisfied when each defendant was apprised of
the State’s intent to seek repeat offender sentencing days
before the sentencing hearing); Melear, 63 Haw. at 499, 630 P.2d
at 628 (following Freitas and holding that the notice
requirement was satisfied when defendant received the State’s
motion for repeat offender sentencing a month and a half before
the first sentencing hearing); Schroeder, 76 Hawaii at 531, 880
P.2d at 206 (following Freitas and noting that the defendant
received notice before sentencing of only the State’s intent to
seek a single mandatory minimum term). Under Jess, as clarified
by Alleyne, we now hold that the State provides “reasonable
notice” to a defendant it seeks to sentence as a repeat offender
when it alleges the defendant’s predicate prior convictions in a
charging instrument. To the extent the aforementioned cases
hold that due process requires only that notice be given prior
to sentencing, they are hereby overruled.
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We are cognizant of the fact that we announce new rules in
this case. As such, we consider whether these new rules will be
given
(1) purely prospective effect, which means that the rule is
applied neither to the parties in the law-making decision
nor to those others against or by whom it might be applied
to conduct or events occurring before that decision; (2)
limited or “pipeline” retroactive effect, under which the
rule applies to the parties in the decision and all cases
that are on direct review or not yet final as of the date
of the decision; or (3) full retroactive effect, under
which the rule applies both to the parties before the court
and to all others by and against whom claims may be
pressed.
Jess, 117 Hawaii at 401, 184 P.3d at 153 (internal citations and
quotation marks omitted). The “paradigm case” warranting a
prospective-only application of a new rule arises “when a court
expressly overrules a precedent upon which the contest would
otherwise be decided differently and by which the parties may
previously have regulated their conduct.” 117 Hawaii at 400,
184 P.3d at 152 (citing James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 534 (1991)).
In this case, Alleyne has compelled changes to our
appellate precedent regarding whether the Apprendi rule applies
to repeat offender mandatory minimum charging and sentencing
under HRS § 706-606.5. Absent Alleyne, Auld’s sentence would
have been affirmed under Loher, 118 Hawaii 522, 193 P.3d 438,
and Gonsalves, 108 Hawaii 289, 119 P.3d 597, as the Apprendi
rule had no application to repeat offender mandatory minimum
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sentencing under HRS § 706-606.5, and, even if it did, the prior
conviction exception would have applied. In other words, we
expressly overrule precedent upon which the “contest would
otherwise be decided differently,” which counsels in favor of a
prospective-only application. Jess, 117 Hawaii at 400, 184 P.3d
at 152 (citation omitted).
In the wake of Alleyne, Loher and Gonsalves are now
overruled to the extent each held that the Apprendi rule did not
apply to mandatory minimum sentencing of repeat offenders under
HRS § 706-606.5. As the first consequence of that overruling,
we have had occasion to further scrutinize whether Apprendi’s
“fact of prior conviction” exception applies to mandatory
minimum sentencing of repeat offenders under HRS § 706-606.5,
and we hold that, as a matter of state law, it does not. The
second consequence of overruling Loher and Gonsalves by
extending the Apprendi rule to repeat offender sentencing is
that we also hold that Jess’s rule requiring a charging
instrument to include “all ‘allegations, which if proved, would
result in the application of a statute enhancing the penalty of
the crime committed,’” now requires the State to allege the
prior convictions it seeks to use as a basis for sentencing a
defendant as a repeat offender, because “[m]andatory minimum
sentences increase the penalty for a crime.” Jess, 117 Hawaii
at 398, 184 P.3d at 150; Alleyne, 133 S. Ct. at 2155. In so
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doing, we overrule Freitas (and those cases drawing on Freitas’s
holding), which concluded that due process in repeat offender
sentencing “does not require that notice be given prior to the
trial of the underlying offense[.]” Thus, prior to this case,
the “parties may previously have regulated their conduct”
consistently with the rules set forth in Freitas, Loher and
Gonsalves that did not require a charging instrument to allege
predicate prior convictions, or a jury to find, beyond a
reasonable doubt, that a defendant’s prior convictions subject
him or her to a mandatory minimum sentence as a repeat offender
under HRS § 706-606.5. This further counsels in favor of a
prospective-only application. Jess, 117 Hawaii at 400, 184 P.3d
at 152 (citation omitted).
As to how repeat offender sentencing procedures would look
in the future, this court has suggested that information
pertaining to sentencing may be introduced after the guilt phase
of the trial has concluded. See Maugaotega, 117 Hawaii at 412,
184 P.3d at 164 (citing State v. Janto, 92 Hawaii 19, 34-35, 986
P.2d 306, 321-22 (1999). This is apparently the procedure
described in Keohokapu, where the jury heard testimony
concerning the offenses leading to defendant’s prior convictions
during the extended term sentencing phase of the trial. 127
Hawaii at 96-101, 276 P.3d at 665-70. As with other
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constitutional rights, the defendant would also have the option
of waiving a jury trial for repeat offender sentencing fact-
finding, similar to the waiver option for extended term
sentencing fact-finding. See HRS § 706-664(1) (“[T]he defendant
shall have the right to hear and controvert the evidence against
the defendant and to offer evidence upon the issue [of extended
term sentencing] before a jury; provided that the defendant may
waive the right to a jury determination under this subsection,
in which case the determination shall be made by a court.”). We
do not foresee future changes to repeat offender sentencing
procedures to be markedly different from extended term
sentencing procedures.
VI. Conclusion
We hold that, under article I, sections 5 and 10 of the
Hawaii Constitution, the State must allege the predicate prior
conviction(s) in a charging instrument in order to sentence the
defendant to a mandatory minimum sentence as a repeat offender
under HRS § 706-606.5. We further hold that, as a matter of
state law, Apprendi’s “fact of prior conviction” exception does
not apply to repeat offender sentencing under HRS § 706-606.5,
and that a jury is required to find that the defendant’s prior
conviction(s) have been proved beyond a reasonable doubt to
trigger the imposition of a mandatory minimum sentence under
that statute. As these new rules result from the express
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overruling of prior appellate precedent holding that the
Apprendi rule did not apply to mandatory minimum sentencing and
that notice of repeat offender sentencing did not need to be
given in a charging instrument, they are given prospective
effect only. Therefore, the ICA’s judgment on appeal, which
affirmed the circuit court’s judgment of conviction and
sentence, is affirmed.
Benjamin Lowenthal /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Artemio C. Baxa
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
32