HB1152 SD2

SECTION 1. The purpose of this Act is to amend Hawaii’s extended term sentencing law to address potential issues raised in recent federal court opinions and rulings on the right to a jury trial. These opinions, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct 2531, 159 L.Ed.2d 403 (2004), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and Cunningham v. California, 549 U.S. _____ (2007) have held that any fact, other than prior convictions, that increases the penalty for a crime beyond the ordinary statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

On February 20, 2007, the United States Supreme Court denied the state’s writ of certiorari in Frank v. Kaua, ____ S.Ct. , (2007) 2007 WL 506822, 74 USLW 3687, 75 USLW 3021 (U.S. Feb 20, 2007) (NO. 05-1536) and granted a writ of certiorari in Maugaotega v. Hawaii ____S.Ct. ___ 2005 WL 2890505 (U.S. Feb 20, 2007) (NO. 05-7309). In granting the writ of certiorari in Maugaotega, the United States Supreme Court vacated the Hawaii supreme court’s opinion and remanded the case to the Hawaii supreme court for further consideration in light of the recently decided Cunningham case.

These recent developments critically impair the current ability of the state courts to impose an extended term of imprisonment upon a discrete class of defendants. Therefore, the legislature finds a compelling necessity to amend Hawaii’s extended term sentencing statutes.

SECTION 2. Section 706-662, Hawaii Revised Statutes, is amended to read as follows:

“§706-662 Criteria for extended terms of imprisonment. A defendant who has been convicted of a felony qualifies for an extended term of imprisonment under section 706-661 if it is proven beyond a reasonable doubt 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 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 in order 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 felony; or

(b) The maximum terms of imprisonment authorized for each of the [~~defendant's~~] crimes[,] for which the defendant has been convicted, if [~~made~~] ordered 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 [~~under the age of~~] eight[,] years-of-age or younger, in that:

(a) The defendant [~~attempts or commits~~] is convicted of committing or attempting to commit 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 is:

(i) Sixty years of age or older;

(ii) Blind, a paraplegic, or a quadriplegic; or

(iii) Eight [~~years of age~~] years-of-age or younger; and

(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.”

SECTION 3. Section 706-664, Hawaii Revised Statutes, is amended to read as follows:

“§706-664 Procedure for imposing extended terms of imprisonment. (1) Hearings to determine the grounds for imposing extended terms of imprisonment may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice pursuant to subsection (2) to the defendant of the ground proposed. Subject to the provisions of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue[.] before a jury; provided that the defendant may waive the defendant's right to the determination by a jury under this subsection, in which case the hearing and determination shall be made by the court.

(2) Notice of an intention to seek an extended term of imprisonment under section 706-662 shall be given to the defendant within sixty days of the defendant’s arraignment. However, the sixty-day period may be waived by the defendant, modified by stipulation of the parties, or extended upon a showing of good cause by the State.

(3) If the jury, or the court, when the defendant has waived the defendant's right to jury, finds that the facts that form the basis for the imposition of an extended term of imprisonment have been proven beyond a reasonable doubt, the court may impose the indeterminate terms of imprisonment provided for in section 706-661.”

SECTION 4. Act 230, Session Laws of Hawaii 2006, is amended by amending section 54 to read as follows:

“SECTION 54. This Act shall take effect upon its approval; provided that on June 30, 2007, [~~sections 23 and 24~~] section 23 of this Act shall be repealed [~~and sections 706-661 and 706-662,~~] and section 706-661, Hawaii Revised Statutes, shall be reenacted in the form in which [~~they~~] it read on the day before the effective date of this Act.”

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 3011.

HOUSE OF REPRESENTATIVES	H.B. NO.	1152
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 1
STATE OF HAWAII		S.D. 2