§706-662  Criteria for extended terms of imprisonment.  A defendant who has been convicted of a felony may be subject to an extended term of imprisonment under section 706-661 if it is proven beyond a reasonable doubt 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:

     (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 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;

     (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; or

     (7)  The defendant is convicted under section 707-702.5 and the defendant did not remain at the scene of the crime and render reasonable assistance to an injured person, including acts and omissions in violation of section 291C-12. [L 1972, c 9, pt of §1; am L 1978, c 210, §1; am L 1981, c 166, §1; am L 1985, c 280, §1; am L 1986, c 314, §40; am L 1988, c 305, §11; am L 1990, c 67, §8; gen ch 1992; am L 1996, c 3, §1; am L 2001, c 240, §3; am L 2003, c 33, §2; am L 2006, c 230, §§24, 54; am L Sp 2007 2d, c 1, §3; am L 2018, c 40, §2]

 

Applicability of Act 1, Second Special Session of 2007

 

  L Sp 2007 2d, c 1, §5 provides:

  "SECTION 5.  This Act shall apply to all sentencing or resentencing proceedings pending on or commenced after the effective date of this Act [October 31, 2007], whether the offense was committed prior to, on, or after the effective date of this Act [October 31, 2007].  A defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor.  This Act shall not entitle a defendant who has previously been sentenced to an extended term to be resentenced pursuant to the procedures set forth in this Act unless the defendant is otherwise legally entitled to be resentenced."

 

Law Journals and Reviews

 

  Elder Abuse and Laws to Protect Older Persons in Hawaii.  15 HBJ, no. 13, at 93 (2013).

  Risky Business:  Assessing Dangerousness in Hawai'i.  24 UH L. Rev. 63 (2001).

  State v. Rivera:  Extended Sentencing and the Sixth Amendment Right to Trial by Jury in Hawai'i.  28 UH L. Rev. 457 (2006).

 

Case Notes

 

  Hawaii sentencing court found that an extended sentence was necessary to protect the public in appellee's case.  Because the effect of the finding was to increase appellee's sentence above that authorized by the jury's guilty verdict, Apprendi v. New Jersey required a jury to make the finding.  436 F.3d 1057 (2006).

  Where the district court had granted relief on petitioner's claim that the enhancement of petitioner's sentence based on judge-found facts violated Apprendi, the State's failure to object and its affirmative invitation that the district court adopt the magistrate's recommendation constituted waiver of its challenge to petitioner's Apprendi claim.  825 F.3d 1103 (2016).

  Petitioner's extended sentence, based on judge-determined facts, violated Apprendi v. New Jersey and represented "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States".  350 F. Supp. 2d 848 (2004).

  Question whether trial court may rely solely on the pre-sentence diagnosis and report to make finding that defendant is a multiple offender raised but not decided.  56 H. 32, 526 P.2d 1200 (1974).

  Extended sentence imposed on multiple offender held not cruel and unusual punishment.  56 H. 343, 537 P.2d 724 (1975).

  Proof beyond reasonable doubt in separate proceeding is required.  56 H. 628, 548 P.2d 632 (1976).

  Where prior conviction is an element of the crime, it should be proven in the case in chief in a one stage proceeding.  57 H. 339, 555 P.2d 1199 (1976).

  Applicability of the due process guarantees to the two-step process of imposing a sentence for extended term.  60 H. 71, 588 P.2d 394 (1978).

  Contents of record on appeal.  60 H. 71, 588 P.2d 394 (1978).

  In paragraph (4), the criterion that the extended term is "warranted" is construed to mean "necessary for the protection of the public."  60 H. 71, 588 P.2d 394 (1978).

  Provisions not unconstitutional.  60 H. 100, 588 P.2d 409 (1978).

  Trial court permissibly relied on pre-sentence report in finding defendant to be a persistent offender, where facts establishing defendant as such offender were in the record apart from the pre-sentence report.  60 H. 100, 588 P.2d 409 (1978).

  Paragraph (4) interpreted as not requiring separate step to determine criminality.  60 H. 308, 588 P.2d 394 (1978).

  Full-hearing requirement under section does not apply to adjustments of pre-penal code sentences under Act 188, SL 1975.  61 H. 517, 606 P.2d 83 (1980).

  Criteria for imposition of extended term on multiple offender.  62 H. 112, 612 P.2d 110 (1980).

  At the voir dire stage, it is uncertain whether the extended term provision for a multiple offender is applicable, and a defendant charged with three counts of robbery in the first degree is not entitled to twelve peremptory challenges pursuant to HRPP 24(b).  63 H. 354, 628 P.2d 1018 (1981).

  Not cruel and unusual punishment under circumstances.  63 H. 488, 630 P.2d 619 (1981).

  Sufficient evidence to impose extended term.  63 H. 488, 630 P.2d 619 (1981); 63 H. 636, 633 P.2d 1115 (1981).

  Defendant should be permitted to show that counsel was ineffective at time of prior convictions.  65 H. 354, 652 P.2d 1119 (1982).

  Circuit court did not err in first step of extended term sentencing procedure; case remanded to circuit court for specification of reasons for determining that extended terms were necessary for protection of public and entry of findings of fact to support that determination.  78 H. 383, 894 P.2d 80 (1995).

  No abuse of discretion in court sentencing defendant to extended terms of imprisonment under §706-661 and this section where, inter alia, court considered each of the factors enumerated in §706-606 and all the mitigating factors raised by defendant.  83 H. 335, 926 P.2d 1258 (1996).

  A psychiatric or psychological evaluation of a defendant under paragraph (3) does not require a face-to-face interview in cases where defendant refuses to be examined.  85 H. 258, 942 P.2d 522 (1997).

  Where witness testimonies provided proof beyond reasonable doubt that defendant had significant history of dangerousness resulting in criminally violent conduct, extended term sentence under paragraph (3) proper and necessary for protection of public.  85 H. 258, 942 P.2d 522 (1997).

  Where psychologist was competent to testify, foundation for testimony properly laid, and testimony established a history of defendant's violence, trial court did not abuse discretion in finding that psychologist's testimony constituted proof beyond a reasonable doubt that defendant had a "significant history of dangerousness to others resulting in criminally violent conduct", pursuant to paragraph (3).  90 H. 280, 978 P.2d 718 (1999).

  Findings under paragraph (5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890 (1999).

  A sentencing court may not impose an enhanced sentence based on a defendant's refusal to admit guilt with respect to an offense the conviction of which the defendant intends to appeal.  103 H. 315, 82 P.3d 401 (2003).

  Trial court violated defendant's constitutional privilege against self-incrimination by imposing an enhanced sentence pursuant to paragraph (4) based solely on defendant's refusal to admit defendant's guilt with respect to the offenses of which defendant was convicted by the jury.  103 H. 315, 82 P.3d 401 (2003).

  Hawaii's extended term sentencing scheme is not incompatible with Blakely v. Washington, as (1) Blakely addresses only statutory "determinate"  sentencing "guideline" schemes, and (2) the Hawaii supreme court's "intrinsic-extrinsic" analysis culminating in State v. Kaua is compatible with both Blakely and Apprendi v. New Jersey.  106 H. 146, 102 P.3d 1044 (2004).

  Trial court did not err in sentencing defendant to extended terms of imprisonment under this section where it found that (1) defendant was a persistent and multiple offender and (2) that defendant's commitment for an extended term was necessary for the protection of the public.  106 H. 146, 102 P.3d 1044 (2004).

  Trial court did not err in sentencing defendant to extended terms of imprisonment as a "multiple offender" pursuant to paragraph (4)(a); without this finding that the defendant committed a previous felony, notwithstanding that such an extended term may be considered "necessary for protection of the public", a judge would not be authorized to impose it; and extended term sentencing did not run afoul of Sixth Amendment to U.S. Constitution as interpreted by the U.S. Supreme Court in Apprendi v. New Jersey.  110 H. 79, 129 P.3d 1107 (2006).

  Inasmuch as this section authorizes the sentencing court to extend a defendant's sentence beyond the "standard term" authorized solely by the jury's verdict by requiring the sentencing court, rather than the trier of fact, to make an additional necessity finding that does not fall under Apprendi's prior-or-concurrent-convictions exception, this section is unconstitutional on its face; thus, defendant's extended term sentences imposed by the trial court violated defendant's Sixth Amendment right to a jury trial and were illegal.  115 H. 432, 168 P.3d 562 (2007).

  Invocation of a court's inherent power to provide process where none exists, by reforming this section (1996) to allow for jury fact-finding did not violate defendant's due process right, where assigning the fact-finding role to the jury would be a procedural, as opposed to a substantive, change that would not expand the scope of criminal liability, increase punishment, or alter any evidentiary burdens to defendant's detriment, but, rather, would simply change the course to a result.  117 H. 381, 184 P.3d 133 (2008).

  The constitutional prohibition against ex post facto measures was not offended by the plain language of Act 1, L Sp 2007 2d, amending §§706-661, 706-664, and this section regarding sentencing or resentencing for extended terms of imprisonment, where it was clear that the new jury provisions did not (1) increase criminal liability for conduct previously innocent, (2) aggravate the degree of defendant's crimes, (3) increase the punishment available at the time defendant committed defendant's crimes, or (4) alter evidentiary standards to defendant's detriment.  117 H. 381, 184 P.3d 133 (2008).

  Where enactment of Act 1, L Sp 2007 2d provided conclusive expression of legislative support for the use of juries as the trier of fact with respect to extended term sentencing fact-finding, invocation of circuit court's inherent power to reform this section so as to preserve its constitutionality did not unduly burden or substantially interfere with the other branch's exercise of its power.  117 H. 381, 184 P.3d 133 (2008).

  This section sets forth the facts the jury must find in order to authorize the court to increase the defendant's sentence beyond the statutory maximum for the offense of manslaughter; as the matter of parole was a matter outside the scope of the jury's function, which was limited to finding the two operative facts under this section, it was error for the trial court to instruct the jury on parole.  127 H. 91, 276 P.3d 660 (2012).

  The constitutional prohibition against ex post facto measures was not offended by the retrospective application to defendant of Act 1, L Sp 2007 2d, amending §§706-661, 706-664, and this section, where Act 1 did not punish as a crime an act previously committed which was innocent when done, make more burdensome the punishment for the crime after its commission, nor deprive one charged with the crime of any defense available according to the law when the act was committed.  118 H. 68 (App.), 185 P.3d 816 (2008).

 

COMMENTARY ON §§706-661 AND 706-662

 

  These sections provide for extended terms of imprisonment for the exceptionally difficult defendant.  The Code's limited recognition of consecutive sentences, and its attempt to provide lower authorized sentences for the majority of convicted defendants whose records or situations do not suggest the need for extended incarceration, necessitates some provision for dealing with the persistent, professional, dangerous, and multiple offender.  Unlike other offenders, these defendants should be subject to possible extended terms because their records or situations indicate that extended incarceration may be necessary to protect the public.  In these cases, rehabilitation, if possible, is unlikely to be achieved within an ordinary term.

  The Code takes a flexible approach with respect to extended imprisonment.  If one or more of the grounds provided by §706-662 is established, it remains discretionary with the court whether an extended term will be imposed--its imposition is not mandatory.

  Section 706-662 authorizes an extended term in the case of (1) a persistent offender, (2) a professional criminal, (3) a dangerous person, and (4) a multiple offender.  Subsections (1) through (4) state the minimal requirements for each of the findings.  These requirements are not intended as mandates, or even guidelines, but rather as limitations on the court's exercise of discretion.

[T]he existence of the minimal conditions do not make the finding necessary nor is it, indeed, compulsory in any case.  Minimal conditions are stated as a safeguard against possible abusive findings, not as a judgment that establishment of the conditions necessarily demands that the finding in question should be made.  Of course, before the court can make the ultimate finding required, it must find that the minimal conditions are established.[1]

 

SUPPLEMENTAL COMMENTARY ON §§706-661 AND 706-662

 

  Act 210, Session Laws 1978, amended §706-662 by adding paragraph (5), finding offenses against the elderly and the handicapped to be a significant problem.

  Act 166, Session Laws 1981, amended §706-662 by deleting the requirement that defendants be at least twenty-two years of age before they become subject to possible extended terms as persistent offenders or professional criminals, it appearing that those most often arrested and sentenced for felonies fell in the eighteen to twenty-five year age group.  As amended, the section authorizes the court to impose extended terms, in appropriate cases, regardless of the defendant's age.  Senate Standing Committee Report No. 705.

  Act 280, Session Laws 1985, amended §706-662 to impose an extended prison term on a defendant who, while committing or attempting to commit certain felony offenses, inflicts serious bodily injury on a person who is blind, paraplegic, quadriplegic, sixty years old or older, or eight years of age or younger.  This amendment addresses the needs of persons who cannot protect themselves as well as expresses condemnation of defendants who commit crimes against those persons.  House Standing Committee Report No. 398, Senate Standing Committee Report No. 852.

  Act 305, Session Laws 1988, amended §706-662 by clarifying the definition of dangerousness by removing old language and using language which conforms more to "state of the art" knowledge about violence prediction.  The legislature stated that this would lead to an increase in the accuracy of violence prediction by focusing on the two principal components, history of dangerousness and present triggers of violent behavior.  This section was also amended to allow the introduction of victim-related data in order to establish dangerousness.  Senate Standing Committee Report No. 2153.

  Act 3, Session Laws 1996, amended §706-662 by adding manslaughter to the crimes for which an extended term of imprisonment may be given when the defendant inflicts serious or substantial bodily injury on a person sixty years or older, handicapped, or eight years or younger.  The legislature found that the elderly, handicapped, and children are more vulnerable and should be provided more protection, and that adding manslaughter to the enhanced sentencing statute was consistent with the policy to protect the more vulnerable people in the community.  Senate Standing Committee Report No. 2036, House Standing Committee Report No. 988-96.

  Act 286, Session Laws 1999, amended §706-661 to make the extended term of imprisonment for murder in the second degree an indeterminate life imprisonment without the possibility of parole.  Conference Committee Report No. 89.

  Act 240, Session Laws 2001, amended §706-662 by allowing extended terms of imprisonment for perpetrators of hate-motivated crimes, to protect Hawaii's citizens from crimes motivated by bigotry and hate.  House Standing Committee Report No. 1422.

  Act 33, Session Laws 2003, amended §706-662, among others, to protect a person's actual or perceived gender identity or expression under the State's current hate crime laws.  The legislature found that one child out of two hundred is born with noticeable gender ambiguity, and one child out of one hundred has hidden ambiguity.  These persons often struggle with their gender identity and are ridiculed, harassed, and sometimes assaulted by others for being different.  The U.S. Department of Justice reports that hate crimes directed against gay, lesbian, bisexual, and transgender citizens are especially violent.  "Sexual orientation," currently included in the hate crimes law, is not the same as "gender identity."  The legislature believed that this class of persons should be included and afforded protection under Hawaii's hate crime laws.  Senate Standing Committee Report No. 593, House Standing Committee Report No. 1184.

  Act 230, Session Laws 2006, amended §706-661 to require the court to consider public safety in deciding whether to impose an extended term of imprisonment.  Act 230 amended §706-662 to clarify that a defendant who has been convicted of a felony qualifies for an extended term of imprisonment under §706-661.  Act 230 also provided that the amendments to §§706-661 and 706-662 would sunset on June 30, 2007.  House Standing Committee Report No. 665-06, Conference Committee Report No. 94-06.

  Act 1, Second Special Session Laws 2007, amended Hawaii's extended sentencing statutes, §§706-661, 706-662, and 706-664, to ensure that the procedures used to impose extended terms of imprisonment comply with the requirements of the United States Supreme Court and the Hawaii supreme court.  Act 1 required that a jury determine the facts necessary to impose an extended term of imprisonment, unless the defendant waives the right to a jury determination, and that facts necessary to impose an extended term of imprisonment are proven beyond a reasonable doubt.  The legislature found that Hawaii's current extended sentencing procedure had been deemed unconstitutional because a judge, rather than a jury, was required to find facts, other than those of prior or concurrent convictions, necessary to enhance a defendant's sentence beyond the ordinary or standard term authorized by the jury's verdict.  Act 1's amendments conformed the State's enhanced sentencing law to the requirements of the United States Supreme Court and the Hawaii supreme court.  Act 1 applied retroactively to sentencing or resentencing proceedings that were pending on or commenced after its effective date [October 31, 2007], whether the offense was committed prior to, on, or after that date.  However, the Act did not entitle a defendant who was previously sentenced to an extended term of imprisonment to resentencing pursuant to the procedures set forth in the Act, unless the defendant was otherwise legally entitled to be resentenced.  Senate Standing Committee Report No. 7, House Standing Committee Report No. 1.

  Act 40, Session Laws 2018, amended §706-662 to authorize an extended term of imprisonment for an offender who is convicted of negligent homicide in the first degree and did not remain at the scene of the crime and render reasonable assistance to an injured person.  The legislature found that Hawaii is above the national average for persons who report driving after drinking too much, as well as the rate of deaths for all ages due to crashes involving a drunk driver.  The legislature also noted a recent increase in fatal automotive crashes in which the offending driver failed to render aid after the crash.  Conference Committee Report No. 78-18.

 

__________

§§706-661 and 706-662 Commentary:

 

1.  M.P.C., Tentative Draft No. 2, comments at 41-42 (1954).

 

 

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