706-668.5 Multiple sentence of imprisonment. (1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively.

(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606.

(3) For terms of imprisonment imposed prior to June 18, 2008, the department of public safety shall post written notice in all inmate housing units and the facility library at each correctional facility for a period of two months and send written notice to the defendant no later than January 1, 2016, that shall include but not be limited to:

(a) Notice that the department of public safety may recalculate the multiple terms of imprisonment imposed on the defendant; and

(b) Notice of the defendant's right to have the court review the defendant's sentence. [L 1986, c 314, 45; am L 2008, c 193, 1; am L 2015, c 194, 1]

 

COMMENTARY ON 706-668.5

 

Act 193, Session Laws 2008, amended this section to promote consistency in sentencing law by requiring that multiple terms of imprisonment, whether imposed at the same time or at different times, run concurrently unless the court orders or the statute mandates that the terms run consecutively. Testimony indicated that there had been some misunderstanding and misinterpretation of the sentencing law involving multiple terms of imprisonment. Act 193 clarified the law. Conference Committee Report No. 81-08, House Standing Committee Report No. 688-08, Senate Standing Committee Report No. 3337.

Act 194, Session Laws 2015, amended this section to require the department of public safety to provide written notice to defendants who had terms of imprisonment imposed prior to June 18, 2008, to include notice: (1) that the department may recalculate the multiple terms of imprisonment imposed on the defendant; and (2) of the defendant's right to have the court review the defendant's sentence. The legislature found that prior to 2008, this section provided that multiple terms of imprisonment run consecutively unless the court specifically ordered that the terms run concurrently. Act 193, Session Laws 2008, amended this section to provide that multiple terms of imprisonment run concurrently unless the court specifically orders that the terms run consecutively. Act 194 attempted to bring parity to the treatment of defendants sentenced to multiple terms prior to the effective date of Act 193, which is June 18, 2008, and those sentenced to multiple terms after that date while providing defendants with adequate notice regarding the possibility of their multiple terms of imprisonment being recalculated by the department and their rights to have the court review their sentences. Conference Committee Report No. 158.

 

Law Journals and Reviews

 

State v. Kumukau: A Case for the Application of Eighth Amendment Proportionality Analysis. 13 UH L. Rev. 577 (1991).

 

Case Notes

 

Statute (pre-2008) discussed, where defendants' motion for partial summary judgment was granted as to counts alleging violations of the state constitution and negligence, but was otherwise denied, in a 42 U.S.C. 1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention". 678 F. Supp. 2d 1061 (2010).

Sentencing court's imposition of consecutive prison terms pursuant to this section constituted an abuse of discretion, where court's sole purpose in imposing consecutive terms was to maximize the supervisory power of the Hawaii paroling authority over defendant in an attempt to facilitate the collection of court-ordered restitution. 78 H. 127, 890 P.2d 1167 (1995).

Sentencing court did not abuse its discretion in resentencing appellant to consecutive terms of imprisonment. 79 H. 281, 901 P.2d 481 (1995).

Extraordinarily sadistic and cruel manner in which defendant committed offenses and defendant's past behavioral history required retributive, incapacitative and deterrent penal objectives of consecutive terms of imprisonment achieved under this section. 83 H. 335, 926 P.2d 1258 (1996).

Trial court plainly erred in sentencing defendant to consecutive terms of imprisonment based on the unsubstantiated allegation that defendant had transferred a semi-automatic firearm to a drug dealer. 106 H. 441, 106 P.3d 364 (2005).

Where defendant was convicted by the jury of five first-degree thefts, each of which defendant was sentenced to ten years' incarceration, and pursuant to 706-660 and this section, five ten-year terms running consecutively was the statutory maximum, defendant's sentence did not deprive defendant of defendant's right to a jury trial as interpreted by the U.S. Supreme Court in Apprendi and Blakely. 111 H. 267, 141 P.3d 440 (2006).

Imposing a prison sentence consecutively to "any sentence" pursuant to 706-606.5(5), including the lesser of such sentences, is a novel, but accurate view of the statute; thus, henceforth, the circuit court must state on the record its reasons for imposing a consecutive as opposed to a concurrent sentence under 706-606.5 or this section. 122 H. 495, 229 P.3d 313 (2010).

The circuit court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment based on defendant's "extensive criminality". 131 H. 94, 315 P.3d 720 (2013).

Trial court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under this section where, taking into consideration all of the factors set forth in 706-606, the court pointed to the high level of cruelty, violence, and viciousness involved in the commission of the offenses, that most of the offenses took place in front of defendant's two-year-old son, defendant's lack of remorse, the clear and present danger defendant posed to complainant and the community, and the poor prospects for defendant's rehabilitation. 106 H. 365 (App.), 105 P.3d 242 (2004).

Court did not abuse its discretion in sentencing defendant to consecutive terms of imprisonment under this section because it considered the factors set forth in 706-606; defendant's extensive record and the fact that defendant caused a lot of harm in the community were specific circumstances that led the court to conclude that a consecutive sentence was appropriate. 129 H. 135 (App.), 295 P.3d 1005 (2013).

Discussed: 81 H. 421 (App.), 918 P.2d 228 (1996).

 

 

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