SB678

Report Title:

Sentencing

Description:

Provides for a mandatory sentence of 30 years to life for habitual violent felons. Adds 15 serious class C felonies to those offenses subject to repeat offender sentencing. Makes defendants convicted of class A felony drug offences and recidivist drug offenders ineligible for lenient sentencing. Amends the repeat offender statute.

THE SENATE	S.B. NO.	678
TWENTY-THIRD LEGISLATURE, 2005
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO SENTENCING.

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

SECTION 1. This Act shall be known as the "Serious Consequences for Serious Crime Act of 2005."

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

"§706- Special sentencing of habitual violent felons. (1) Notwithstanding any other provision of law to the contrary, a habitual violent felon shall be sentenced to both:

(a) A mandatory minimum term of imprisonment of not less than thirty years; and

(b) A mandatory indeterminate term of life imprisonment.

(2) The sentence under subsection (1) may be mitigated as provided in subsection (8).

(3) A habitual violent felon shall not be eligible for parole sooner than serving the mandatory minimum term under subsection (1) or (2), as applicable.

(4) Except for work furlough programs in the final year of a sentence which require incarceration during the time the inmate is not working or traveling to or from work, a habitual violent felon shall not be eligible for pre-release, furlough, or other modified terms of imprisonment without the written authorization of the governor, which authorization shall not be delegable.

(5) A defendant is a "habitual violent felon" if:

(a) The defendant is at least eighteen years old at the time the defendant committed the current offense;

(b) The current conviction is for murder in the second degree or any class A or class B felony that is a crime of violence; and

(i) Murder in any degree;

(ii) Any class A felony or class B felony that is a crime of violence; or

(iii) Any federal or out-of-state offense that is comparable to a crime of violence as defined in subsection (6), or any federal or out-of-state offense that under the laws of this State would be a crime of violence as defined in subsection (6).

(6) For purposes of this section, "crime of violence" means:

(a) Murder in any degree;

(b) Manslaughter;

(d) Kidnapping under section 707-720(1)(a) or (b) that is a class A felony;

(e) Sexual assault in the first degree;

(f) Continuous sexual assault of a minor under the age of fourteen years that includes an act of sexual penetration;

(g) Promoting child abuse in the first degree;

(h) Robbery in the first degree; or

(i) Carrying or use of a firearm in the commission of a separate felony.

(7) The court shall advise a defendant of the defendant's eligibility for sentencing under this section prior to the entry of a verdict of guilty, whether by trial, plea of guilty, or plea of no contest, and shall set forth the date and jurisdiction where each prior conviction occurred.

(8) The court may impose a mitigated sentence under the following procedures:

(a) A motion is made by the State that the court depart from the sentencing provisions of this section, based upon the defendant's cooperation in the investigation in another case or of another person or entity; or

(b) A motion is made by the defendant that the court depart from the sentencing provisions of this section and, after a hearing on the defendant's motion, the court finds that the circumstances of the case are exceptional and that a manifest injustice will occur if the defendant is sentenced in accordance with the sentencing provisions of this section. The court shall provide a written opinion stating its findings and its reasons for imposing a lesser sentence; provided that the court's order may be appealed by the State under section 641-13."

SECTION 3. Section 641-13, Hawaii Revised Statutes, is amended to read as follows:

"§641-13 By State in criminal cases. An appeal may be taken by and on behalf of the State from the district or circuit courts to the supreme court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss, any indictment, information, or complaint or any count thereof;

(2) From an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy;

(3) From an order granting a new trial;

(4) From an order arresting judgment;

(5) From a ruling on a question of law adverse to the State where the defendant was convicted and appeals from the judgment;

(6) From the sentence, on the ground that it is illegal;

(7) From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such appeal and the order shall be stayed pending outcome of such appeal;

(8) From an order denying a request by the State for protective order for nondisclosure of witness for their personal safety under Rule 16(e)(4) of the Hawaii Rules of Penal Procedure, in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such appeal and the order shall be stayed pending outcome of such appeal; [or]

(9) From a judgment of acquittal following a jury verdict of guilty[.]; or

(10) From an order granting a defendant's motion made pursuant to section 706- to depart from the sentencing provisions for habitual violent felons."

SECTION 4. 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, 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 291E-61.5 relating to habitually operating a vehicle under the influence of an intoxicant; section 386-98 relating to penalties for fraud; section 431:10A-131 relating to insurance fraud; section 431:10C- 307.7 relating to insurance fraud; section 432:1-106 relating to insurance fraud; section 432D-18.5 relating to insurance fraud; section 707-703 relating to negligent homicide in the first degree; section 707-711 relating to assault in the second degree; section 707-712.5 relating to assault on a law enforcement officer in the first 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 or rape in the third degree; section 707-735 relating to sodomy in the third degree; section 707-736 relating to sexual abuse in the first degree; [~~707-751~~] section 707-752 relating to promoting child abuse in the [~~second~~] 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 first degree as amended by Act 68, Session Laws of Hawaii 1981; 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 708-836.5 relating to unauthorized entry into motor vehicle; 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 710-1070 relating to bribery of or by a witness; section 710-1071 relating to intimidating a witness; section 710-1072.2 relating to retaliating against a witness; section 710-1073 relating to bribery of or by a juror; section 710-1075 relating to jury tampering; section 710-1075.5 relating to retaliating against a juror; section 711-1103 relating to riot; section 712-1203 relating to promoting prostitution in the second degree; section 712-1215 relating to promoting pornography for a minor; section 712-1221 relating to 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 712-1249.6 relating to promoting a controlled substance in, on, or near schools or school vehicles; section 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; section 134-8 relating to ownership, etc., of prohibited weapons; section 134-9 relating to permits to carry[,]; section 134-51 relating to use of a deadly weapon in the commission of a crime; section 134-52 relating to use of a switchblade knife in the commission of a crime; section 134-53 relating to use of a butterfly knife in the commission of a crime, 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;

(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~~] the period that begins on the date of the defendant's conviction and ends twenty years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for 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~~] the period that begins on the date of the defendant's conviction and ends twenty years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for 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~~] the period that begins on the date of the defendant's conviction and ends twenty years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for a prior felony conviction where the prior felony conviction was for a class A felony;

(d) Within [~~ten years after~~] the period that begins on the date of the defendant's conviction and ends ten years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for a prior felony conviction where the prior felony conviction was for a class B felony;

(e) Within [~~five years after~~] the period that begins on the date of the defendant's conviction and ends five years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for 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.~~] After a prior felony conviction of another jurisdiction, within the period that begins on the date of the defendant's conviction and does not end until:

(i) The defendant is released from incarceration, released from parole, or released from probation, whichever is later; and

(ii) After the defendant's release from incarceration, release from parole, or release from probation, whichever is later, the expiration of an additional period that equals the maximum term of possible incarceration for the crime for which the defendant was convicted.

(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~~] the period that begins on the date of the defendant's conviction and ends eight years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for a prior felony conviction where the prior felony conviction was for a class A felony;

(b) Within five years after the period that begins on the date of the defendant's conviction and ends five years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for the prior felony conviction where the prior felony conviction was for a class B felony;

(c) Within four years after the period that begins on the date of the defendant's conviction and ends four years after the date of the defendant's release from incarceration, release from parole, or release from probation, whichever is later, for 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;

~~(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,~~] three misdemeanors, three felonies, or any combination of misdemeanors and felonies totaling three convictions for acts that took place on three prior and separate occasions, shall be sentenced to no less than nine months of imprisonment[.], which shall not be suspended. 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[.]; provided that the mandatory minimum period of imprisonment imposed is a mandatory minimum period of imprisonment not less than half the mandatory minimum period of imprisonment without possibility of parole that would otherwise be mandated by this section. 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] Except for work furlough programs in the final year of a sentence which require incarceration during the time the inmate is not working or traveling to or from work, a person who is imprisoned in a correctional institution pursuant to subsection (1) shall not be paroled, pre-released, or furloughed 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

SECTION 5. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Notwithstanding section 706-620(3), a person who has no prior felony conviction, who has no felony charge for which proceedings have been deferred but not discharged under section 712-1255, and who has no felony charge for which acceptance of the plea has been deferred but not discharged under chapter 853, who is convicted for the first time for any offense other than a class A felony under part IV of chapter 712 involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5, is eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;

(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index; and

(c) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program.

Nothing in this section shall affect sentencing for any conviction for an offense that is not under part IV of chapter 712, even when such a conviction arises out of the same set of facts as the offense that is under part IV of chapter 712. Nothing in this section shall affect the sentencing of offenders eligible for mandatory sentencing, enhanced sentencing, or other special sentencing provisions under part I or IV of this chapter."

SECTION 6. Section 853-4, Hawaii Revised Statutes, is amended to read as follows:

"§853-4 Chapter not applicable; when. This chapter shall not apply when:

(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

(2) The offense charged is:

(a) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

(b) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

(4) The offense charged is a class A felony;

(5) The offense charged is nonprobationable;

(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

(9) A firearm was used in the commission of the offense charged;

(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;

(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea status for a prior offense, regardless of whether the period of deferral has already expired;

(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea status for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

(13) The offense charged is:

(A) Escape in the first degree;

(B) Escape in the second degree;

(D) Promoting prison contraband in the second degree;

(E) Bail jumping in the first degree;

(F) Bail jumping in the second degree;

(G) Bribery;

(H) Bribery of a witness;

(I) Intimidating a witness;

(J) Bribery of or by a juror;

(K) Intimidating a juror;

(L) Jury tampering;

(M) Promoting prostitution in the first degree;

(N) Promoting prostitution in the second degree;

(O) Promoting prostitution in the third degree;

(P) Abuse of family or household members;

(Q) Sexual assault in the second degree;

(R) Sexual assault in the third degree;

(S) A violation of an order issued pursuant to chapter 586[.];

(T) Kidnapping;

(U) Unlawful imprisonment in the first degree;

(V) Promoting child abuse in the second degree;

(W) Promoting child abuse in the third degree;

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

(Y) Electronic enticement of a child in the second degree;

(Z) Sexual exploitation of a minor;

(AA) Identity theft in the first degree;

(BB) Identity theft in the second degree;

(CC) Robbery in the second degree;

(DD) Habitually operating a vehicle under the influence of an intoxicant;

(EE) Bribery;

(FF) Bribery of or by a witness;

(GG) Retaliating against a witness;

(HH) Bribery of or by a juror;

(II) Jury tampering;

(JJ) Retaliating against a juror;

(KK) Promoting pornography for a minor; or

(LL) Promoting a controlled substance in, on, or near schools or school vehicles.

The court may adopt by rule other criteria in this area."

SECTION 7. Act 202, Session Laws of Hawaii 2004, is amended by amending section 70 to read as follows:

"SECTION 70. Section 641-13, Hawaii Revised Statutes, is amended to read as follows:

"§641-13 By State in criminal cases. An appeal may be taken by and on behalf of the State from the district or circuit courts to the intermediate appellate court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss, any indictment, information, or complaint or any count thereof;

(2) From an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy;

(3) From an order granting a new trial;

(4) From an order arresting judgment;

(5) From a ruling on a question of law adverse to the State where the defendant was convicted and appeals from the judgment;

(6) From the sentence, on the ground that it is illegal;

(7) From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property, in which case the appellate court shall give priority to such an appeal and the order shall be stayed pending the outcome of the appeal;

(8) From an order denying a request by the State for protective order for nondisclosure of witness for their personal safety under Rule 16(e)(4) of the Hawaii Rules of Penal Procedure, in which case the appellate court shall give priority to such appeal and the order shall be stayed pending outcome of such appeal; [or]

(9) From a judgment of acquittal following a jury verdict of guilty[.]; or

(10) From an order granting a defendant's motion made pursuant to section 706- to depart from the sentencing provisions for habitual violent felons."

SECTION 8. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________
	BY REQUEST