706-660 Sentence of imprisonment for class B and C felonies; ordinary terms; discretionary terms. (1) Except as provided in subsection (2), a person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

(a) For a class B felony--ten years; and

(b) For a class C felony--five years.

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

(2) A person who has been convicted of a class B or class C felony for any offense under part IV of chapter 712 may be sentenced to an indeterminate term of imprisonment; provided that this subsection shall not apply to sentences imposed under sections 706-606.5, 706-660.1, 712-1240.5, 712-1240.8 as that section was in effect prior to July 1, 2016, 712-1242, 712-1245, 712-1249.5, 712‑1249.6, 712-1249.7, and 712-1257.

When ordering a sentence under this subsection, the court shall impose a term of imprisonment, which shall be as follows:

(a) For a class B felony--ten years or less, but not less than five years; and

(b) For a class C felony--five years or less, but not less than one year.

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669. [L 1972, c 9, pt of 1; am L 1976, c 92, 8 and c 204, 2; am L 1980, c 294, 2; am L 1986, c 314, 38; am L 2013, c 280, 2; am L 2016, c 231, 29]

 

COMMENTARY ON 706-660

 

This section embodies three important policy determinations of the Code.

With the exception of special problems calling for extended terms of incarceration as provided in subsequent sections, it provides for only one possible maximum length of imprisonment for each class of felony. Assuming care is used in designating the grade and class of each offense, this should go a long way in ameliorating the variety of inconsistent sentences previously authorized.

In 1965, the legislature enacted a law designed to end judicially imposed inconsistent sentences of imprisonment.[1] This policy known as true indeterminate sentencing is continued. The court's discretion is limited to choosing between imprisonment and other modes of sentencing. Once the court has decided to sentence a felon to imprisonment, the actual time of release is determined by parole authorities. Having decided on imprisonment, the court must then impose the maximum term authorized.[2] The concept is accepted in California[3] and is being proposed in Michigan.[4] This policy is also in substantial accord with the proposed A.B.A. Standards on sentencing.[5]

Inevitably, there will remain some disparity arising from the fact that some judges will be more strongly inclined toward granting probation (or other non-imprisonment disposition) than others. The criteria set forth in part II of this chapter, for withholding a sentence of imprisonment, are intended to alleviate this disparity somewhat. Moreover, 706-669, governing the procedure for determining the actual minimum time to be served, provides that the parole board must make an initial determination as soon as practicable but, in any event, no later than six months following commitment. Thus, "[g]rossly inappropriate denial[s] of probation can in most instances be cured fairly promptly through parole, if the circumstances favoring release are evident...."[6]

Finally, this section embodies a policy of differentiating exceptional problems calling for extended terms of imprisonment[7] from the problems which the vast majority of offenders present. Most of the felony sentences previously authorized in Hawaii were clearly intended to encompass the most dangerous offender. The uniform application of a sentence designed to encompass exceptional cases seems clearly unwarranted in the cases presented by the vast majority of offenders. This is borne out by the A.B.A.'s recent study:

...[M]any sentences authorized by statute in this country are, by comparison to other countries and in terms of the needs of the public, excessively long for the vast majority of cases. Their length is undoubtedly the product of concern for protection against the most exceptional cases, most notably the particularly dangerous offender and the professional criminal. It would be more desirable for the penal code to differentiate explicitly between most offenders and such exceptional cases, by providing lower, more realistic sentences for the former and authorizing a special term for the latter.[8]

The sentences provided in this section, when compared to the extended sentences authorized in subsequent sections, seek to achieve the recommended explicit differentiation.

 

SUPPLEMENTAL COMMENTARY ON 706-660

 

Act 204, Session Laws 1976, amended the first sentence by adding the exception excluding persons convicted of felonies involving firearms. In its report, the Conference Committee states that it "intends to require the court in cases of felonies where a firearm was used to impose a mandatory term of imprisonment" and that nothing contained in the bill "should be construed as precluding (a) the court from imposing an indeterminate sentence or an extended indeterminate sentence, or (b) the Hawaii paroling authority from fixing the minimum term of imprisonment at a length greater than the term of imprisonment provided for in this bill [706-660.1]." Conference Committee Report Nos. 34 and 35.

Act 294, Session Laws 1980, restricted this section to sentences for class B and C felonies, eliminating provisions relating to class A felonies. For class A felonies, see 706-659.

Act 280, Session Laws 2013, amended this section by granting a sentencing court the discretion to sentence a defendant convicted of a class B or class C felony drug offense to a prison sentence of a length appropriate to the defendant's particular offense and underlying circumstances. Specifically, this Act allows a court to impose a sentence of imprisonment for certain class B felonies for not less than five years, and a sentence of imprisonment for certain class C felonies for not less than one year. The legislature found that state mandatory minimum sentencing laws are being challenged across the nation because these laws mandate longer prison sentences regardless of whether the sentencing court believes the punishment is appropriate based on the circumstances and facts of the case. Studies have shown that mandatory minimum sentencing of drug users causes an increase in incarceration costs and have a disproportionate impact on women and certain racial and ethnic groups. Senate Standing Committee Report No. 496, House Standing Committee Report No. 1464.

Act 231, Session Laws 2016, amended subsection (2) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

 

Case Notes

 

Because criminal solicitation to commit first degree murder is a crime declared to be a felony without specification of class within meaning of 706-610, it is a class C felony for sentencing purposes, subject to the sentencing provisions of this section. 84 H. 229, 933 P.2d 66 (1997).

For sentencing purposes, conspiracy to commit second degree murder is a class C felony under 706-610 and subject to the sentencing provisions of this section, not 706-656. 84 H. 280, 933 P.2d 617 (1997).

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 this section and 706-668.5, 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).

Upon revocation of probation pursuant to 706-625(3), in light of the record, 706-621 and this section, trial court did not abuse its discretion in sentencing defendant to imprisonment "for a term of not more than ten years with credit for time served". 97 H. 135 (App.), 34 P.3d 1034 (2001).

Cited: 56 H. 628, 548 P.2d 632 (1976).

 

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706-660 Commentary:

 

1. See H.R.S. 711-76.

 

2. It must, however, be remembered that the Code grants the court the power to impose an extended term of imprisonment (see 706-661).

 

3. Cal. Pen. Code 1168.

 

4. Prop. Mich. Rev. Cr. Code 1401.

 

5. A.B.A. Standards 3.2.

 

6. Prop. Mich. Rev. Cr. Code, comments at 130.

 

7. Cf. 706-661.

 

8. A.B.A. Standards 2.5.

 

 

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