CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0002894; CR. NO. 12-1-0690(3))
Benjamin Lowenthal for petitioner.
Artemio C. Baxa for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
The primary questions presented in this case are whether the State, in seeking to sentence a defendant to a mandatory minimum sentence as a repeat offender under Hawai'i Revised Statutes ("HRS") § 706-606.5 (2014), (1) must include the defendant's predicate prior convictions in a charging instrument; and (2) must prove these prior convictions to a jury, beyond a reasonable doubt. We answer both questions in the affirmative.
This appeal surfaces in the wake of the sea change in state sentencing procedure brought on by the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In that case, the Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 489. We adopted this holding in State v. Maugaotega, 115 Hawai'i 432, 447, 168 P.3d 562, 577 (2007), with respect to our state's extended sentencing procedures, which were subsequently codified at HRS §§ 706-661, -662, and -664 (2014).
Recently, the United States Supreme Court extended the Apprendi rule to mandatory minimum sentencing. See Alleyne v. United States, 133 S.Ct. 2151 (2013). Alleyne held
Any fact that, by law, increases the penalty for a crime is an "element" that must be submitted to the jury and found beyond a reasonable doubt. See [Apprendi, 523 U.S. at 483, n.10, 490] Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury.
133 S.Ct. at 2155. Our appellate case law currently holds that the Apprendi rule does not apply to mandatory minimum sentencing. See State v. Gonsalves, 108 Hawai'i 289, 297, 119 P.3d 597, 605 (2005) ("Apprendi does not apply to mandatory minimums[.]"); State v. Loher, 118 Hawai'i 522, 534 n.8, 193 P.3d 438, 450 n.8 (App. 2008) ("Apprendi only applies to penalties that increase the maximum statutory incarceration period, not set a mandatory minimum like HRS § 706-606.5."). This holding has now been implicitly called into question by Alleyne.
We acknowledge that Alleyne did not involve mandatory minimum sentencing based on prior convictions, as Auld's case does. We also acknowledge that the Apprendi rule contains an exception for the "fact of prior conviction" to its requirement that a jury find, beyond a reasonable doubt, those facts enhancing a defendant's sentence. It was not until this case, however, that we have had the opportunity to directly address whether Apprendi's "fact of prior conviction" exception has a place within our repeat offender mandatory minimum sentencing scheme. We hold that it does not.
This is because repeat offender sentencing under HRS § 706-606.5 requires more than just a finding of the "fact" of prior conviction. In order to sentence a defendant as a repeat offender, the State must prove (1) that the defendant has a prior conviction (or convictions); (2) that a prior conviction is specifically enumerated under HRS § 706-606.5(1) or (4); (3) that a prior conviction occurred within the time frame set forth under HRS § 706-606.5(2), (3), or (4); and (4) that the defendant was represented by counsel, or had waived such representation, at the time of the prior conviction. See State v. Caldeira, 61 Haw. 285, 290, 602 P.2d 930, 933 (1979) (per curiam); State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929 (1979) (per curiam). Therefore, as a matter of state law, the Apprendi "fact of prior conviction" exception does not apply to prior convictions forming the basis of repeat offender sentencing pursuant to HRS § 706-606.5. As a result, a defendant is entitled to have a jury find, beyond a reasonable doubt, those facts necessary to show that he or she is subject to repeat offender sentencing under HRS § 706-606.5.
Further, our case law interpreting article I, sections 5 and 10 of the Hawai'i Constitution requires "a charging instrument, be it an indictment, complaint, or information, [to] include all
'allegations, which if proved, would result in the application of a statute enhancing the penalty of the crime committed.'" State v. Jess, 117 Hawai'i 381, 398, 184 P.3d 133, 150 (2008) (citations omitted). Five years after we issued Jess, the United States Supreme Court in Alleyne clearly held that "[m]andatory minimum sentences increase the penalty for a crime." 133 S.Ct. at 2155. In the wake of Alleyne, then, we are compelled to hold that repeat offender sentencing under HRS § 706-606.5 "enhanc[es] the penalty of the crime committed." Consequently, under article I, sections 5 and 10 of the Hawai'i Constitution, a defendant's predicate prior conviction(s) must be alleged in the charging instrument.
We are aware that our holdings today announce new rules for repeat offender charging and sentencing in Hawai'i pursuant to HRS § 706-606.5. Consequently, our new holdings take effect prospectively only. The ICA's judgment on appeal, which affirmed the Circuit Court of the Second Circuit's ("circuit court") judgment of conviction and sentence, is therefore affirmed.
II. Trial Court Proceedings
Petitioner/Defendant-Appellant Jayson Auld was charged by indictment with committing Robbery in the Second Degree. It is undisputed that Auld's indictment did not allege that he had any prior convictions. A jury found Auld guilty as charged. That jury was not asked to find, and did not find, beyond a reasonable doubt, that Auld had any prior convictions. After Auld was convicted, the State filed its Motion for Imposition of Mandatory Minimum Period of Imprisonment. The State requested that Auld be sentenced, as a repeat offender, to a mandatory minimum period of imprisonment of "SIX (6) YEARS, and, EIGHT (8) MONTHS without the possibility of parole, " pursuant to HRS § 706-606.5(1)(b)(iii). The State averred that Auld had been convicted in 2011 of one count of Unauthorized Control of a Propelled Vehicle and one count of Promoting a Dangerous Drug in the Third Degree. The State attached as an exhibit to its motion a copy of Auld's judgment of conviction and probation sentence reflecting both prior convictions.
Auld's Opposition to the State's motion did not argue that his prior convictions were required to be found by a jury beyond a reasonable doubt (or charged in the indictment); instead, he argued that strong mitigating circumstances warranted a lesser mandatory minimum period of imprisonment.
At the sentencing hearing, the State called Auld's probation officer. The State introduced into evidence the "self-authenticating sealed and certified judgment for Jayson Auld" for his prior convictions. Auld's counsel did not object, and the circuit court received the document into evidence. Auld's probation officer testified as to what the underlying offenses were, and Auld's counsel did not cross-examine him. The circuit court also took judicial notice of the records on file for both of Auld's prior cases, and asked the State and Auld if they objected; neither did. The circuit court also noted that it was the court that presided over those prior cases.
The circuit court granted the State's Motion for Imposition of Mandatory Minimum Period of Imprisonment, sentencing Auld to ten years of incarceration, with credit for time served, subject to the mandatory minimum of six years and eight months as a repeat offender. Auld timely appealed.
III. ICA Appeal
A. Opening Brief
Relevant to the issues presented on certiorari, Auld argued for the first time on appeal that the circuit court "violated [his] Sixth Amendment and Due Process Rights when it granted the prosecution's post-verdict motion for the mandatory minimum term of imprisonment." Auld cited Alleyne as authority for his argument that a jury should have considered the facts alleged in the prosecution's motion for imposition of a mandatory minimum sentence; he cited Jess as authority for his argument that those facts should have also been alleged in the indictment. He asked the ICA to remand his case for resentencing consistent with the jury's verdict, i.e., without the mandatory minimum sentence.
B. Answering Brief
The State distinguished Alleyne, factually and legally, from the instant case. The State correctly pointed out that Alleyne involved 18 U.S.C. § 924(c)(1)(A), which requires a mandatory minimum sentence of imprisonment of five years for a person who "uses or carries" a firearm in relation to a crime of violence, seven years if the firearm is "brandished, " and ten years if the firearm is "discharged." 133 S.Ct. at 2155-56. Although the jury found that Alleyne had "used or carried, " but not "brandished" a firearm, the district court found that Alleyne brandished a firearm and sentenced him to a mandatory minimum of seven years imprisonment. 133 S.Ct. at 2156. The United States Supreme Court held that the district court's judicial fact-finding of "brandishing" violated Alleyne's Sixth Amendment right to have a jury find, beyond a reasonable doubt, those facts aggravating the punishment for a crime. 133 S.Ct. at 2161-62. The State also noted that the Alleyne court stated that its holding "d[id] not mean that any fact that influences judicial discretion must be found by a jury." 133 S.Ct. at 2163. In the instant appeal, the State appeared to argue that Auld's prior convictions did not need to be found by a jury beyond a reasonable doubt in order for the circuit court to have sentenced him to a mandatory minimum sentence as a repeat offender.
Citing State v. Drozdowski, 9 Haw.App. 583, 585, 854 P.2d 238, 240 (1993), the State also argued that "ordinary sentencing procedures apply to the mandatory minimum sentencing hearing." Under State v. Mara, 102 Hawai'i 346, 368, 76 P.3d 589, 611 (App. 2003), the State argued, such "ordinary sentencing procedures" include the "abuse of discretion" standard as the ...