§706-660  Sentence of imprisonment for class
B and C felonies; ordinary terms.  A person who has been convicted of a
class B or class C felony may be sentenced to an indeterminate term of
imprisonment except as provided for in section 706-660.1 relating to the use of
firearms in certain felony offenses and section 706-606.5 relating to repeat
offenders.  When ordering such a sentence, the court shall impose the maximum
length of imprisonment which shall be as follows:



(1)  For a class B felony--10 years; and



(2)  For a class C felony--5 years.



The minimum length of imprisonment shall be
determined by the Hawaii paroling authority in accordance with section 706-669.
[L 1972, c 9, pt of §1; am L 1976, c 92, §8 and c 204, §2; am L 1980, c 294,
§2; am L 1986, c 314, §38]



 



COMMENTARY ON §706-660



 



  This section embodies three important policy determinations
of the Code.



  With the exception of special problems calling for extended
terms of incarceration as provided in subsequent sections, it provides for only
one possible maximum length of imprisonment for each class of felony.  Assuming
care is used in designating the grade and class of each offense, this should go
a long way in ameliorating the variety of inconsistent sentences previously
authorized.



  In 1965, the Legislature enacted a law designed to end
judicially imposed inconsistent sentences of imprisonment.[1]  This policy
known as true indeterminate sentencing is continued.  The court's discretion is
limited to choosing between imprisonment and other modes of sentencing.  Once
the court has decided to sentence a felon to imprisonment, the actual time of
release is determined by parole authorities.  Having decided on imprisonment,
the court must then impose the maximum term authorized.[2]  The concept is accepted
in California[3] and is being proposed in Michigan.[4]  This policy is also in
substantial accord with the proposed A.B.A. Standards on sentencing.[5]



  Inevitably, there will remain some disparity arising from the
fact that some judges will be more strongly inclined toward granting probation
(or other non-imprisonment disposition) than others.  The criteria set forth in
Part II of this chapter, for withholding a sentence of imprisonment, are
intended to alleviate this disparity somewhat.  Moreover, §706-669, governing
the procedure for determining the actual minimum time to be served, provides
that the parole board must make an initial determination as soon as practicable
but, in any event, no later than six months following commitment.  Thus, "[g]rossly
inappropriate denial[s] of probation can in most instances be cured fairly
promptly through parole, if the circumstances favoring release are
evident...."[6]



  Finally, this section embodies a policy of differentiating
exceptional problems calling for extended terms of imprisonment[7] from the
problems which the vast majority of offenders present.  Most of the felony
sentences previously authorized in Hawaii were clearly intended to encompass
the most dangerous offender.  The uniform application of a sentence designed to
encompass exceptional cases seems clearly unwarranted in the cases presented by
the vast majority of offenders.  This is borne out by the A.B.A.'s recent
study:



...[M]any
sentences authorized by statute in this country are, by comparison to other
countries and in terms of the needs of the public, excessively long for the
vast majority of cases.  Their length is undoubtedly the product of concern for
protection against the most exceptional cases, most notably the particularly
dangerous offender and the professional criminal.  It would be more desirable
for the penal code to differentiate explicitly between most offenders and such
exceptional cases, by providing lower, more realistic sentences for the former
and authorizing a special term for the latter.[8]



  The sentences provided in this section, when compared to the
extended sentences authorized in subsequent sections, seek to achieve the
recommended explicit differentiation.



 



SUPPLEMENTAL COMMENTARY ON §706-660



 



  Act 204, Session Laws 1976, amended the first sentence by
adding the exception excluding persons convicted of felonies involving
firearms.  In its report, the Conference Committee states that it "intends
to require the court in cases of felonies where a firearm was used to impose a
mandatory term of imprisonment" and that nothing contained in the bill
"should be construed as precluding (a) the court from imposing an
indeterminate sentence or an extended indeterminate sentence, or (b) the Hawaii
Paroling Authority from fixing the minimum term of imprisonment at a length
greater than the term of imprisonment provided for in this bill"
[706-660.1].  Conference Committee Report Nos. 34 and 35.



  Act 294, Session Laws 1980, restricted this section to
sentences for class B and C felonies, eliminating provisions relating to class
A felonies.  For class A felonies, see §706-659.



 



Case Notes



 



  Because criminal solicitation to commit first degree murder
is a crime declared to be a felony without specification of class within
meaning of §706-610, it is a class C felony for sentencing purposes, subject to
the sentencing provisions of this section.  84 H. 229, 933 P.2d 66.



  For sentencing purposes, conspiracy to commit second degree
murder is a class C felony under §706-610 and subject to the sentencing
provisions of this section, not §706-656.  84 H. 280, 933 P.2d 617.



  Where defendant was convicted by the jury of five
first-degree thefts, each of which defendant was sentenced to ten years'
incarceration, and pursuant to this section and §706-668.5, five ten-year terms
running consecutively was the statutory maximum, defendant's sentence did not
deprive defendant of defendant's right to a jury trial as interpreted by the
U.S. Supreme Court in Apprendi and Blakely.  111 H. 267, 141 P.3d 440.



  Where use of term "rifle" in complaint did not
indicate whether weapon used was a semi-automatic or automatic firearm, as
opposed to one which was not, complaint failed to properly allege, and thereby
notify defendant of defendant's criminal liability under paragraph (3)(d).  84
H. 352 (App.), 933 P.2d 1386



  Upon revocation of probation pursuant to §706-625(3), in
light of the record, §706-621 and this section, trial court did not abuse its
discretion in sentencing defendant to imprisonment "for a term of not more
than ten years with credit for time served".  97 H. 135 (App.), 34 P.3d
1034.



  Cited:  56 H. 628, 548 P.2d 632.



 



__________



§706-660 Commentary:



 



1.  See H.R.S. §711-76.



 



2.  It must, however, be remembered that the Code grants the
court the power to impose an extended term of imprisonment (see §706-661).



 



3.  Cal. Pen. Code §1168.



 



4.  Prop. Mich. Rev. Cr. Code §1401.



 



5.  A.B.A. Standards §3.2.



 



6.  Prop. Mich. Rev. Cr. Code, comments at 130.



 



7.  Cf. §706-661.



 



8.  A.B.A. Standards §2.5.