Report Title:

Enhanced Sentencing; offenses

Description:

Provides for enhanced sentencing for recidivist behavior evidenced by prior convictions for certain criminal offenses.

HOUSE OF REPRESENTATIVES

H.B. NO.

2900

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO sentencing reform.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that tougher sentencing guidelines for career criminals with a history of violence could have prevented the unfortunate slaying of Honolulu Police Department Officer Glen Gaspar on March 4th, 2003. The legislature also finds that Officer Gaspar was killed in the line of duty while attempting to apprehend career criminal Shane Mark on an outstanding warrant for investigation of attempted murder and multiple weapon offenses. The legislature further finds that Shane Mark had a history of criminal behavior, including assaulting a police officer, and had been charged over sixty times while having been convicted for fourteen offenses.

The legislature further finds that tougher sentencing guidelines for recidivist behavior, such as laws mandating extended sentences for recidivist behavior, are a valid policy tool for dealing with career criminals. The recent U.S. Supreme Court case of Ewing v. California, which upholds the constitutionality of California's extended sentencing law, cites to a California Department of Justice study that shows that four years after the enactment of their extended sentencing law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 per cent. In addition, after the enactment of the extended sentencing law, the number of parolees leaving California was greater than the number entering the state, and that trend continues. Recent studies in California show than nearly 60 per cent of the crimes in the state are committed by roughly 6 per cent of the criminal offenders.

The purpose of this Act is to enact an extended sentencing law in Hawaii that will penalize the career criminal with tendencies towards violence and prevent avoidable tragedies like the slaying of Honolulu Police Department Officer Glen Gaspar.

SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§706-A Sentencing principles for repeat offenders with two or more prior convictions, where at least one is for a violent crime.

(a) Notwithstanding any other provisions of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has (1) two or more prior felony convictions, and that (2) any of the defendant's prior convictions, including a prior felony conviction pled pursuant to (1), is for a violent crime, as defined in -B, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a mandatory minimum term of the indeterminate sentence calculated as the greater of:

(A) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions; or

(B) twenty-five years or

(C) the term of imprisonment for the underlying conviction, including any enhancement applicable under the Penal Code.

§706-B Violent crime; definition. (a) For the purposes of this section and notwithstanding any other provision of law, "violent crime" shall mean any of the following:

(1) Murder or manslaughter;

(2) Assault in the first, second, or third degrees;

(3) Assault against a police officer;

(4) Reckless endangering in the first degree;

(5) Terroristic threatening in the first degree;

(6) Kidnapping;

(7) Unlawful imprisonment in the first degree;

(8) Custodial interference in the first degree;

(9) Sexual assault in the first, second, or third degree;

(10) Continuous sexual assault of a minor under the age of fourteen years;

(11) Electronic enticement of a child in the first degree;

(12) Extortion in the first or second degree;

(13) Burglary in the first or second degree;

(14) Criminal property damage in the first degree;

(15) Robbery;

(16) Endangering the welfare of a minor in the first degree;

(17) Abuse of family or household member, where the prescribed penalty would be a felony conviction;

(18) Escape in the first degree;

(19) Intimidation of a correctional worker;

(20) Retaliating against a witness or juror;

(21) Intimidating a juror; and

(22) Aggravated harassment by stalking.

(b) A prior conviction for a violent crime shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular crime as defined under subsection (a) and Hawaii law and is punishable by imprisonment if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under Hawaii law if the offense carries a maximum penalty of more than one year in prison.

(c) None of the following dispositions shall affect the determination that a prior conviction is a prior conviction for a violent crime for purposes of this section:

(1) The suspension of imposition of judgment or sentence;

(2) The stay of execution of sentence; or

(3) The commitment to any other facility whose function is rehabilitative diversion from prison."

SECTION 3. Section 706-606.5, Hawaii Revised Statutes, is amended to read as follows:

"§706-606.5 Sentencing of repeat offenders. (1) Notwithstanding section 706-669 and any other law to the contrary, and with the exception of sections 706-A and 706-B, 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 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters; section 707-703 relating to negligent homicide in the first degree; 707-711 relating to assault in the second degree; 707-713 relating to reckless endangering in the first degree; 707-716 relating to terroristic threatening in the first degree; 707-721 relating to unlawful imprisonment in the first degree; 707-732 relating to sexual assault or rape in the third degree; 707-735 relating to sodomy in the third degree; 707-736 relating to sexual abuse in the first degree; 707-751 relating to promoting child abuse in the second degree; 707-766 relating to extortion in the second degree; 708-811 relating to burglary in the second degree; 708-821 relating to criminal property damage in the second degree; 708-831 relating to theft in the first degree as amended by Act 68, Session Laws of Hawaii 1981; 708-831 relating to theft in the second degree; 708-835.5 relating to theft of livestock; 708-836 relating to unauthorized control of propelled vehicle; 708-852 relating to forgery in the second degree; 708-854 relating to criminal possession of a forgery device; 708-875 relating to trademark counterfeiting; 710-1071 relating to intimidating a witness; 711-1103 relating to riot; 712-1203 relating to promoting prostitution in the second degree; 712-1221 relating to gambling in the first degree; 712-1224 relating to possession of gambling records in the first degree; 712-1243 relating to promoting a dangerous drug in the third degree; 712-1247 relating to promoting a detrimental drug in the first degree; 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; 134-8 relating to ownership, etc., of prohibited weapons; 134-9 relating to permits to carry, 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;

(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;

(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;

(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;

(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;

(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. "

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

 

 

INTRODUCED BY:

_____________________________