§706-606.5 - Sentencing of repeat offenders.

§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 386-98(d)(1) relating to fraud violations
and penalties; section 431:2-403(b)(2) relating to insurance fraud; section
707-703 relating to negligent homicide in the second degree; section 707-711
relating to assault in the second 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 707-752 relating to promoting child abuse in
the 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 708-839.8 relating to
identity theft in the third degree; section 708-839.55 relating to unauthorized
possession of confidential personal information; 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 710-1071 relating to intimidating a witness; section 711-1103 relating
to riot; section 712-1203 relating to promoting prostitution in the second
degree; 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 846E-9 relating to failure to comply with covered offender registration
requirements; 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, 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; and

(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; and

(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; and

(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;

(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;

(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. [L 1976, c 181, §1; am L 1979, c 98, §1; am L 1980, c 284, §1; am L
1981, c 69, §1; am L 1986, c 314, §17; am L 1987, c 181, §3; am L 1990, c 28,
§2; am L 1996, c 87, §1; am L 1997, c 277, §2; am L 1999, c 195, §10 and c 244,
§1; am L 2006, c 80, §1 and c 139, §4; am L 2007, c 49, §2; am L 2008, c 80, §2;
am L 2009, c 149, §6]

Note

Section 707-703 as amended relates to negligent homicide in
the second degree.

Sections 707-735 and 707-736, referred to in text, are
repealed.

Cross References

Former conviction in another jurisdiction, see §706-665.

Negligent homicide in the first degree, see §707-702.5.

COMMENTARY ON §706-606.5

This section was added by Act 181, Session Laws 1976.
Finding a clear danger to the people of Hawaii in the high incidence of
offenses being committed by repeat offenders, the legislature felt it necessary
to provide for mandatory terms of imprisonment without possibility of parole in
cases of repeated offenses by prior offenders. House Conference Committee
Report No. 32, Senate Conference Committee Report No. 33.

Act 98, Session Laws 1979, amended this section to provide
that persons convicted of any of the crimes enumerated be punished as repeat
offenders if they are subsequently convicted of any of the enumerated offenses
within the time of the maximum sentence of the prior conviction. Under the
prior law, a person had to be convicted of the same enumerated crime on more
than one occasion. The Legislature felt this amendment was needed to alleviate
concerns that the repeat offender problem be dealt with seriously. Conference
Committee Report No. 11.

Act 284, Session Laws 1980, completely revised this section.
It expanded the list of offenses carrying the possibility of mandatory minimum
sentences and divided the offenses into the two classes enumerated in
subsections (1) and (2). Further, it introduced a degree of flexibility into
the sentencing procedure by allowing the court, upon written opinion, to set a
lesser minimum sentence than that prescribed if there were strong mitigating
circumstances to warrant such action.

Act 314, Session Laws 1986, amended the repeat offender law
so that mandatory minimum terms of imprisonment are increased as the severity
of the repeat offense increases. Thus, the mandatory minimum term for a class
A repeat offender is greater than that term for a class B repeat offender. The
period of time during which a felon is considered to have a prior felony
conviction is dependent on the seriousness of the prior felony; the more severe
the prior crime, the longer it remains a prior conviction.

Only certain class C felonies were made subject to the repeat
offender law since the legislature intended to have some latitude as to which
of those crimes should fall within the repeat offender category. Conference
Committee Report No. 51-86.

Act 181, Session Laws 1987, added felony convictions of
another jurisdiction to the list of crimes ("prior felonies") which
are considered in the sentencing of repeat offenders. The Act also added, to
the list of applicable periods, that the period within which the repeat
offender statute applies is the maximum possible prison term of the prior
felony conviction of another jurisdiction. The Act repealed subparagraph
706-606.5(4)(a) to clarify that this section requires only one felony conviction
prior to the felony for which the defendant is sentenced pursuant to this
section. Senate Standing Committee Report No. 1130.

Act 87, Session Laws 1996, added the crime of unauthorized
control of propelled vehicle to the class C felonies subject to repeat offender
sentencing. The legislature found that vehicle thefts and property taken from
the vehicles was a serious problem in the State, and that this kind of theft
affected a significant number of visitors and residents. The Act also amended the
section to prohibit the parole of repeat offenders prior to the expiration of
their mandatory minimum terms of imprisonment. Senate Standing Committee
Report No. 2598.

Act 277, Session Laws 1997, amended this section by including
the offense of trademark counterfeiting in the list of offenses for repeat
offenders. The legislature found that trademark counterfeiting was a recurring
problem in Hawaii for retail boutiques and trademark products of the University
of Hawaii, and that tourists are often the target for the scams. The
legislature believed that the Act would safeguard not only consumers from the
sale of counterfeit products, but would also protect the reputation and quality
of trademarks and ensure that trademarks are used for their legitimate and
intended purposes. House Standing Committee Report No. 1620, Senate Standing
Committee Report No. 759.

Act 195, Session Laws 1999, amended this section to include
§188-23 as an offense subject to repeat offender sentencing. Senate Standing
Committee Report No. 1487.

Act 244, Session Laws 1999, amended this section by, among
other things, providing: (1) that the multiple offender of assault in the
third degree, terroristic threatening in the second degree, sexual assault in
the fourth degree, criminal property damage in the third degree, theft in the
third degree, or misdemeanor shoplifting, shall be sentenced to no less than
nine months of imprisonment in cases where a person is convicted on at least
three prior and separate occasions of any of the specified misdemeanor offenses
within a three-year period; and (2) that the court shall order a defendant
sentenced under §707-733, relating to sexual assault in the fourth degree, to
participate in a sex offender assessment and participate in the sex offender
treatment program, if necessary and appropriate.

The legislature found that there are many criminals who
repeatedly commit misdemeanor offenses; these persons know that under current
law, if caught, the consequences of their conduct will be relatively minor. As
such, there is currently no serious deterrent to their repeated criminal
behavior. A mandatory sentence will send a strong message that repeated
criminal behavior will not be tolerated. Conference Committee Report No. 42,
House Standing Committee Report No. 1466.

Act 80, Session Laws 2006, added electronic enticement of a
child in the second degree to the list of class C felonies subject to repeat
offender sentencing. Act 80 provided a means to ensure the safety of Hawaii's
children, enhance enforcement efforts, and impose significant penalties against
those who prey on the most vulnerable members of the community. Conference
Committee Report No. 10-06, House Standing Committee Report No. 1520-06.

Act 139, Session Laws 2006, increased the protection of
personal information by providing for repeat felony offender sentencing of
offenders with prior felony convictions who are convicted of unauthorized
possession of confidential personal information or of identity theft in the
third degree. Hawaii law enforcement has found it difficult to curb the rise
in identity theft-related crimes when identity thieves in possession of
personal information who have not yet caused a monetary loss to the victim
cannot be prosecuted for crimes other than petty misdemeanor thefts. The
legislature found that increasing the penalties for identity theft by amending
the law to make identity theft an enumerated offense within the repeat offender
statute would help to deter identity theft crimes. Senate Standing Committee
Report No. 2636, House Standing Committee Report No. 1295-06.

Act 49, Session Laws 2007, amended this section to deter
insurance fraud by including felony insurance fraud relating to workers'
compensation, accident and health or sickness, and motor vehicle insurance, and
insurance provided by mutual benefit societies and health maintenance
organizations, among the offenses subject to repeat felony offender
sentencing. The legislature found that while insurance [fraud] is often
perceived as a nonviolent and victimless crime, the ramifications of insurance
fraud affect everyone through higher insurance premiums. House Standing
Committee Report No. 913, Senate Standing Committee Report No. 1589.

Act 80, Session Laws 2008, amended subsection (1) by
including the offense of failure to comply with covered offender registration
requirements. Conference Committee Report No. 82-08.

Act 149, Session Laws 2009, which amended subsection (1),
established an insurance fraud investigations branch to replace the insurance
fraud investigations unit, with expanded authority to prevent, investigate, and
prosecute insurance fraud to include all lines of insurance except workers'
compensation. Act 149 also established criminal and administrative penalties
for insurance fraud in all covered lines of insurance and for different types
of insurance fraud. The legislature found that because insurance fraud occurs
in every line of insurance, the State's insurance fraud law should be expanded
accordingly. Conference Committee Report No. 26, Senate Standing Committee
Report No. 1338.

Case Notes

Not applicable to defendant who had no prior conviction for
any offense for which now charged. 800 F.2d 861.

Where defendant contended, inter alia, that federal sentencing
guidelines preempted use of Hawaii repeat offender statute, defendant's
conviction was subject to the statute, which applied to offenses committed on
federal enclaves; district court did not err in applying the statute. 105 F.3d
463.

"Prior conviction" includes convictions which
occurred before the effective date of statute. 61 H. 262, 602 P.2d 914.

Sentencing under section--procedural requirements. 61 H.
262, 602 P.2d 914.

Statute as it applies to burglary in the first degree is not
unconstitutional as violative of the cruel and unusual punishment, equal
protection, due process, or ex post facto clauses. 61 H. 262, 602 P.2d 914.

Proof of legal representation. 61 H. 281, 602 P.2d 927.

Sufficiency of evidence of prior conviction. 61 H. 281, 602
P.2d 927.

Mandatory minimum sentence for repeat offenders of §712-1242
not constitutionally proscribed. 61 H. 285, 602 P.2d 930.

Requirement of notice of intended application of section. 61
H. 285, 602 P.2d 930.

State must show defendant was represented by counsel at prior
conviction or had waived such representation. 61 H. 285, 602 P.2d 930.

Conviction on multiple counts considered as one prior
conviction. 63 H. 509, 630 P.2d 633.

Lesser mandatory minimum sentence under subsection (3) may be
imposed for persons convicted prior to effective date of 1980 amendment but
sentenced after it. 64 H. 210, 638 P.2d 319.

Not ambiguous. 66 H. 182, 658 P.2d 882.

Section does not apply to attempted felonies. 67 H. 476, 691
P.2d 1169.

Sentence is illegal if not imposed on repeat offender in
compliance with statute's requirements. 67 H. 531, 696 P.2d 344.

Mandatory minimum sentence may not run consecutively to
sentence for underlying conviction. 67 H. 616, 699 P.2d 988.

"Conviction" refers to judgment entered upon
finding of guilt. Two sentences on the same day for separate offenses charged
in two indictments are two convictions. 68 H. 124, 706 P.2d 1293.

Defendant's prior four-year sentence as young adult is the
"maximum sentence of the prior conviction". 68 H. 169, 706 P.2d
1304.

Defendant's two prior convictions did not merge into one
prior conviction. 71 H. 153, 785 P.2d 1314.

A sentencing court may order that a mandatory minimum term of
imprisonment imposed under §706-660.1 be served consecutively to a mandatory
period of imprisonment imposed under this section in connection with a separate
felony conviction arising out of a charge contained in the same indictment or
complaint. 84 H. 476, 935 P.2d 1021.

Section divests sentencing court of authority to impose
consecutive mandatory minimum periods of imprisonment on a defendant convicted
of multiple felony counts charged in the same indictment or complaint. 84 H.
476, 935 P.2d 1021.

Trial court's refusal to find strong mitigating circumstances
pursuant to subsection (4) (1998) and imposition of concurrent mandatory
minimum ten-year terms not unconstitutional where defendant could have
reasonably been deemed to pose a danger to society, more serious crimes by
repeat offenders may be punished in Hawaii by longer mandatory minimum terms,
and other jurisdictions permitted significantly lengthier sentences for repeat
offenders. 93 H. 87, 997 P.2d 13.

Inasmuch as the plain and unambiguous language of this
section requires application of the repeat offender statute over "any
other law to the contrary", the circuit court did not err in sentencing
defendant as a repeat offender pursuant to this section; in all cases in which
this section is applicable, including those in which a defendant would
otherwise be eligible for probation under §706-622.5, the circuit courts must
sentence defendants pursuant to the provisions of this section. 103 H. 228, 81
P.3d 408.

By its plain language, Act 44, L 2004, prospectively
permitted greater discretion to sentencing courts confronted with conflicts
between this section and §706-622.5 than they previously possessed; thus, based
on the legislative intent reflected in Act 44, the Act 161, L 2002 version of
§706-622.5, under which defendant was sentenced, did not trump the repeat
offender statute. 106 H. 1, 100 P.3d 595.

Trial court properly sentenced defendant as a repeat offender
based on defendant's conviction of promoting a dangerous drug in the third
degree under §712-1243, an enumerated class C felony under this section. 106
H. 146, 102 P.3d 1044.

A defendant is entitled, by timely HRPP rule 35 motion to
correct sentence or by HRPP rule 40 petition, to move for correction of an
enhanced sentence once the defendant has successfully attacked a prior
conviction on which the sentence was based in whole or part because that
conviction no longer constitutes a proper basis for increased punishment for a
subsequent offense under this section. 109 H. 458, 128 P.3d 340.

Where defendant was a convicted felon subject to a mandatory
minimum sentence for a repeat offense as of the date the judgment was entered,
the trial court properly relied on the prior conviction in sentencing defendant
because the prior conviction had not been vacated at the time of sentencing.
109 H. 458, 128 P.3d 340.

Because defendant was charged on January 5 and April 13,
2004, prior to L 2004, Act 44's effective date of July 1, 2004, the trial court
erred in applying Act 44's ameliorative amendments to defendant's sentence by
failing to observe the statutory command of Act 44, §29; thus, as defendant
conceded that defendant qualified as a repeat offender under this section in
light of a prior conviction of unauthorized control of a propelled vehicle, the
trial court was required to apply this section to sentence defendant to a
mandatory minimum sentence of one year and eight months. 115 H. 79, 165 P.3d
980.

By virtue of the directive "notwithstanding … any other
law" present in this section, where mandatory minimum terms are imposed consecutively
in the discretion of the court, indeterminate maximum sentences must also run
consecutively despite §706-668 (repealed 1986) because mandatory minimums are
part of, and incorporated within, the period or term of the indeterminate
maximum sentence involved, and indeterminate maximum terms must run
consecutively in order for the mandatory minimum sentence to be imposed
consecutively as permitted by this section. 118 H. 210, 188 P.3d 724.

In considering how the term "maximum term of
imprisonment possible" in subsection (2)(f) should be applied to
sentencing schemes that do not fit the Hawaii mold, the words of the statute
should be strictly applied, with the focus on "terms of
imprisonment"; thus, appellate court erred in interpreting the mandatory
parole term required by Colorado law to be served after the term of
imprisonment as part of the "maximum term of imprisonment possible",
even though reincarceration could subject a parolee to additional time in
prison. 118 H. 425, 193 P.3d 341.

The term "maximum term of imprisonment possible" in
subsection (2)(f) refers to the maximum term of imprisonment to which a court
in a foreign jurisdiction may possibly sentence a convicted defendant. 118 H.
425, 193 P.3d 341.

Where, in light of defendant's stipulation, the combined
evidence should have "reasonably satisfied" the trial court as to the
prior conviction and its sentence date, the trial court abused its discretion
in failing to accord the evidence its proper weight; thus, because defendant
committed the promoting a dangerous drug offense within the "maximum term
of imprisonment possible" after defendant's Colorado conviction, which was
six years, application of the mandatory minimum term under subsection (2)(f)
was appropriate. 118 H. 425, 193 P.3d 341.

In determining voluntariness of guilty plea, judge should
have established that petitioner was aware of mandatory minimum sentence to
same extent as petitioner's awareness of maximum sentence. 9 H. App. 122, 826
P.2d 440.

No merit to defendant's points on appeal that contended that:
(1) circuit court violated right to due process when it assumed role of
prosecutor and attempted to establish a record on which to base a minimum
mandatory sentence; and (2) imposition of mandatory minimum sentence was
unauthorized because circuit court's finding that defendant had prior felony
conviction was not supported by sufficient evidence. 9 H. App. 583, 854 P.2d
238.