§706-661 and 662 - Commentary: 1.

§706-662  Criteria for extended terms of
imprisonment.  A defendant who has been convicted of a felony may be
subject to an extended term of imprisonment under section 706-661 if it is
proven beyond a reasonable doubt that an extended term of imprisonment is
necessary for the protection of the public and 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 or more 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 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 any felony;
or

(b)  The maximum terms of imprisonment
authorized for each of the defendant's crimes, if made 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 eight years of age or younger in that:

(a)  The defendant attempts or commits 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 has the status of being:

(i)  Sixty years of age or older;

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

(iii)  Eight years of age or younger; and

the person's status is known or
reasonably should be known to the defendant; or

(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. [L 1972, c 9, pt of §1; am L 1978, c 210, §1; am L
1981, c 166, §1; am L 1985, c 280, §1; am L 1986, c 314, §40; am L 1988, c 305,
§11; am L 1990, c 67, §8; gen ch 1992; am L 1996, c 3, §1; am L 2001, c 240,
§3; am L 2003, c 33, §2; am L 2006, c 230, §§24, 54; am L Sp 2007 2d, c 1, §3]

Applicability of Act 1, Second Special Session of 2007

  L Sp 2007 2d, c 1, §5 provides:

  "SECTION 5.  This Act shall apply to all sentencing or
resentencing proceedings pending on or commenced after the effective date of
this Act [October 31, 2007], whether the offense was committed prior to, on, or
after the effective date of this Act [October 31, 2007].  A defendant whose
extended term of imprisonment is set aside or invalidated shall be resentenced
pursuant to this Act upon request of the prosecutor.  This Act shall not
entitle a defendant who has previously been sentenced to an extended term to be
resentenced pursuant to the procedures set forth in this Act unless the
defendant is otherwise legally entitled to be resentenced."

Law Journals and Reviews

  Risky Business:  Assessing Dangerousness in Hawai‘i.  24 UH
L. Rev. 63.

  State v. Rivera:  Extended Sentencing and the Sixth Amendment
Right to Trial by Jury in Hawai‘i.  28 UH L. Rev. 457.

Case Notes

  Hawaii sentencing court found that an extended sentence was
necessary to protect the public in appellee's case.  Because the effect of the
finding was to increase appellee's sentence above that authorized by the jury's
guilty verdict, Apprendi v. New Jersey required a jury to make the finding. 
436 F.3d 1057.

  Petitioner's extended sentence, based on judge-determined
facts, violated Apprendi v. New Jersey and represented "a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States".  350 F. Supp. 2d 848.

  Question whether trial court may rely solely on the
pre-sentence diagnosis and report to make finding that defendant is a multiple
offender raised but not decided.  56 H. 32, 526 P.2d 1200.

  Extended sentence imposed on multiple offender held not cruel
and unusual punishment.  56 H. 343, 537 P.2d 724.

  Proof beyond reasonable doubt in separate proceeding is
required.  56 H. 628, 548 P.2d 632.

  Where prior conviction is an element of the crime, it should
be proven in the case in chief in a one stage proceeding.  57 H. 339, 555 P.2d
1199.

  Applicability of the due process guarantees to the two-step
process of imposing a sentence for extended term.  60 H. 71, 588 P.2d 394.

  Contents of record on appeal.  60 H. 71, 588 P.2d 394.

  In paragraph (4), the criterion that the extended term is
"warranted" is construed to mean "necessary for the protection
of the public."  60 H. 71, 588 P.2d 394.

  Provisions not unconstitutional.  60 H. 100, 588 P.2d 409.

  Trial court permissibly relied on pre-sentence report in
finding defendant to be a persistent offender, where facts establishing
defendant as such offender were in the record apart from the pre-sentence
report.  60 H. 100, 588 P.2d 409.

  Paragraph (4) interpreted as not requiring separate step to
determine criminality.  60 H. 308, 588 P.2d 394.

  Full-hearing requirement under section does not apply to
adjustments of pre-penal code sentences under Act 188, SL 1975.  61 H. 517, 606
P.2d 83.

  Criteria for imposition of extended term on multiple
offender.  62 H. 112, 612 P.2d 110.

  At the voir dire stage, it is uncertain whether the extended
term provision for a multiple offender is applicable, and a defendant charged
with three counts of robbery in the first degree is not entitled to twelve
peremptory challenges pursuant to HRPP 24(b).  63 H. 354, 628 P.2d 1018.

  Not cruel and unusual punishment under circumstances.  63 H.
488, 630 P.2d 619.

  Sufficient evidence to impose extended term.  63 H. 488, 630
P.2d 619; 63 H. 636, 633 P.2d 1115.

  Defendant should be permitted to show that counsel was
ineffective at time of prior convictions.  65 H. 354, 652 P.2d 1119.

  Circuit court did not err in first step of extended term
sentencing procedure; case remanded to circuit court for specification of
reasons for determining that extended terms were necessary for protection of
public and entry of findings of fact to support that determination. 78 H. 383,
894 P.2d 80.

  No abuse of discretion in court sentencing defendant to
extended terms of imprisonment under §706-661 and this section where, inter
alia, court considered each of the factors enumerated in §706-606 and all the
mitigating factors raised by defendant.  83 H. 335, 926 P.2d 1258.

  A psychiatric or psychological evaluation of a defendant
under paragraph (3) does not require a face-to-face interview in cases where
defendant refuses to be examined.  85 H. 258, 942 P.2d 522.

  Where witness testimonies provided proof beyond reasonable
doubt that defendant had significant history of dangerousness resulting in
criminally violent conduct, extended term sentence under paragraph (3) proper
and necessary for protection of public.  85 H. 258, 942 P.2d 522.

  Where psychologist was competent to testify, foundation for
testimony properly laid, and testimony established a history of defendant's
violence, trial court did not abuse discretion in finding that psychologist's
testimony constituted proof beyond a reasonable doubt that defendant had a
"significant history of dangerousness to others resulting in criminally
violent conduct", pursuant to paragraph (3).  90 H. 280, 978 P.2d 718.

  Findings under paragraph (5) regarding (a) the age or
handicapped status of the victim and (b) whether "such disability is known
or reasonably should be known to the defendant" entail
"intrinsic" facts; Hawaii constitution requires these findings to be
made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890.

  A sentencing court may not impose an enhanced sentence based
on a defendant's refusal to admit guilt with respect to an offense the
conviction of which the defendant intends to appeal.  103 H. 315, 82 P.3d 401.

  Trial court violated defendant's constitutional privilege
against self-incrimination by imposing an enhanced sentence pursuant to
paragraph (4) based solely on defendant's refusal to admit defendant's guilt
with respect to the offenses of which defendant was convicted by the jury.  103
H. 315, 82 P.3d 401.

  Hawaii's extended term sentencing scheme is not incompatible
with Blakely v. Washington, as (1) Blakely addresses only statutory
"determinate"  sentencing "guideline" schemes, and (2) the
Hawaii supreme court's "intrinsic-extrinsic" analysis culminating in
State v. Kaua is compatible with both Blakely and Apprendi v. New Jersey.  106
H. 146, 102 P.3d 1044.

  Trial court did not err in sentencing defendant to extended
terms of imprisonment under this section where it found that (1) defendant was
a persistent and multiple offender and (2) that defendant's commitment for an
extended term was necessary for the protection of the public.  106 H. 146, 102
P.3d 1044.

  Trial court did not err in sentencing defendant to extended
terms of imprisonment as a "multiple offender" pursuant to paragraph
(4)(a); without this finding that the defendant committed a previous felony,
notwithstanding that such an extended term may be considered "necessary
for protection of the public", a judge would not be authorized to impose
it; and extended term sentencing did not run afoul of Sixth Amendment to U.S.
Constitution as interpreted by the U.S. Supreme Court in Apprendi v. New
Jersey.  110 H. 79, 129 P.3d 1107.

  Inasmuch as this section authorizes the sentencing court to
extend a defendant's sentence beyond the "standard term" authorized
solely by the jury's verdict by requiring the sentencing court, rather than the
trier of fact, to make an additional necessity finding that does not fall under
Apprendi's prior-or-concurrent-convictions exception, this section is
unconstitutional on its face; thus, defendant's extended term sentences imposed
by the trial court violated defendant's Sixth Amendment right to a jury trial
and were illegal.  115 H. 432, 168 P.3d 562.

  Invocation of a court's inherent power to provide process
where none exists, by reforming this section (1996) to allow for jury
fact-finding did not violate defendant's due process right, where assigning the
fact-finding role to the jury would be a procedural, as opposed to a
substantive, change that would not expand the scope of criminal liability,
increase punishment, or alter any evidentiary burdens to defendant's detriment,
but, rather, would simply change the course to a result.  117 H. 381, 184 P.3d
133.

  The constitutional prohibition against ex post facto measures
was not offended by the plain language of Act 1, L Sp 2007 2d, amending
§§706-661, 706-664, and this section regarding sentencing or resentencing for
extended terms of imprisonment, where it was clear that the new jury provisions
did not (1) increase criminal liability for conduct previously innocent, (2)
aggravate the degree of defendant's crimes, (3) increase the punishment
available at the time defendant committed defendant's crimes, or (4) alter
evidentiary standards to defendant's detriment.  117 H. 381, 184 P.3d 133. 

  Where enactment of Act 1, L Sp 2007 2d provided conclusive
expression of legislative support for the use of juries as the trier of fact
with respect to extended term sentencing fact-finding, invocation of circuit
court's inherent power to reform this section so as to preserve its
constitutionality did not unduly burden or substantially interfere with the
other branch's exercise of its power.  117 H. 381, 184 P.3d 133.

  The constitutional prohibition against ex post facto measures
was not offended by the retrospective application to defendant of Act 1, L Sp
2007 2d, amending §§706-661, 706-664, and this section, where Act 1 did not
punish as a crime an act previously committed which was innocent when done,
make more burdensome the punishment for the crime after its commission, nor
deprive one charged with the crime of any defense available according to the
law when the act was committed.  118 H. 68 (App.), 185 P.3d 816.

COMMENTARY ON §§706-661 AND 662

  These sections provide for extended terms of imprisonment for
the exceptionally difficult defendant.  The Code's limited recognition of
consecutive sentences, and its attempt to provide lower authorized sentences
for the majority of convicted defendants whose records or situations do not
suggest the need for extended incarceration, necessitates some provision for
dealing with the persistent, professional, dangerous, and multiple offender. 
Unlike other offenders, these defendants should be subject to possible extended
terms because their records or situations indicate that extended incarceration
may be necessary to protect the public.  In these cases, rehabilitation, if
possible, is unlikely to be achieved within an ordinary term.

  The Code takes a flexible approach with respect to extended
imprisonment.  If one or more of the grounds provided by §706-662 is
established, it remains discretionary with the court whether an extended term
will be imposed--its imposition is not mandatory.

  Section 706-662 authorizes an extended term in the case of
(1) a persistent offender, (2) a professional criminal, (3) a dangerous person,
and (4) a multiple offender.  Subsections (1) through (4) state the minimal
requirements for each of the findings.  These requirements are not intended as
mandates, or even guidelines, but rather as limitations on the court's exercise
of discretion.

[T]he existence of the minimal conditions do not make the
finding necessary nor is it, indeed, compulsory in any case.  Minimal
conditions are stated as a safeguard against possible abusive findings, not as
a judgment that establishment of the conditions necessarily demands that the
finding in question should be made.  Of course, before the court can make the
ultimate finding required, it must find that the minimal conditions are
established.[1]

SUPPLEMENTAL COMMENTARY ON §§706-661 AND 662

  Act 210, Session Laws 1978, amended §706-662 by adding
paragraph (5), finding offenses against the elderly and the handicapped to be a
significant problem.

  Act 166, Session Laws 1981, amended §706-662 by deleting the
requirement that defendants be at least twenty-two years of age before they
become subject to possible extended terms as persistent offenders or
professional criminals, it appearing that those most often arrested and
sentenced for felonies fell in the eighteen to twenty-five year age group.  As
amended, the section authorizes the court to impose extended terms, in
appropriate cases, regardless of the defendant's age.  Senate Standing
Committee Report No. 705.

  Act 280, Session Laws 1985, amended §706-662 to impose an
extended prison term on a defendant who, while committing or attempting to
commit certain felony offenses, inflicts serious bodily injury on a person who
is blind, paraplegic, quadriplegic, sixty years old or older, or eight years of
age or younger.  This amendment addresses the needs of persons who cannot
protect themselves as well as expresses condemnation of defendants who commit
crimes against those persons.  House Standing Committee Report No. 398, Senate
Standing Committee Report No. 852.

  Act 305, Session Laws 1988, amended §706-662 by clarifying
the definition of dangerousness by removing old language and using language
which conforms more to "state of the art" knowledge about violence
prediction.  The legislature stated that this would lead to an increase in the
accuracy of violence prediction by focusing on the two principal components,
history of dangerousness and present triggers of violent behavior.  This
section was also amended to allow the introduction of victim- related data in
order to establish dangerousness.  Senate Standing Committee Report No. 2153.

  Act 3, Session Laws 1996, amended §706-662 by adding
manslaughter to the crimes for which an extended term of imprisonment may be
given when the defendant inflicts serious or substantial bodily injury on a
person sixty years or older, handicapped, or eight years or younger.  The legislature
found that the elderly, handicapped, and children are more vulnerable and
should be provided more protection, and that adding manslaughter to the
enhanced sentencing statute was consistent with the policy to protect the more
vulnerable people in the community.  Senate Standing Committee Report No. 2036,
House Standing Committee Report No. 988-96.

  Act 286, Session Laws 1999, amended §706-661 to make the
extended term of imprisonment for murder in the second degree an indeterminate
life imprisonment without the possibility of parole.  Conference Committee
Report No. 89.

  Act 240, Session Laws 2001, amended §706-662 by allowing
extended terms of imprisonment for perpetrators of hate-motivated crimes, to
protect Hawaii's citizens from crimes motivated by bigotry and hate.  House
Standing Committee Report No. 1422.

  Act 33, Session Laws 2003, amended §706-662, among others, to
protect a person's actual or perceived gender identity or expression under the
State's current hate crime laws.  The legislature found that one child out of
two hundred is born with noticeable gender ambiguity, and one child out of one
hundred has hidden ambiguity.  These persons often struggle with their gender
identity and are ridiculed, harassed, and sometimes assaulted by others for
being different.  The U.S. Department of Justice reports that hate crimes
directed against gay, lesbian, bisexual, and transgender citizens are
especially violent.  "Sexual orientation", currently included in the
hate crimes law, is not the same as "gender identity". The
legislature believed that this class of persons should be included and afforded
protection under Hawaii's hate crime laws.  Senate Standing Committee Report
No. 593, House Standing Committee Report No. 1184.

  Act 230, Session Laws 2006, amended §706-661 to require the
court to consider public safety in deciding whether to impose an extended term
of imprisonment.  Act 230 amended §706-662 to clarify that a defendant who has
been convicted of a felony qualifies for an extended term of imprisonment under
§706-661.  Act 230 also provided that the amendments to §§706-661 and 706-662
would sunset on June 30, 2007.  House Standing Committee Report No. 665-06;
Conference Committee Report No. 94-06.

  Act 1, Second Special Session Laws 2007, amended Hawaii's
extended sentencing statutes, §§706-661, 706-662, and 706-664, to ensure that
the procedures used to impose extended terms of imprisonment comply with the
requirements of the United States Supreme Court and the Hawaii supreme court.  Act
1 required that a jury determine the facts necessary to impose an extended term
of imprisonment, unless the defendant waives the right to a jury determination,
and that facts necessary to impose an extended term of imprisonment are proven
beyond a reasonable doubt.  The legislature found that Hawaii's current
extended sentencing procedure had been deemed unconstitutional because a judge,
rather than a jury, was required to find facts, other than those of prior or
concurrent convictions, necessary to enhance a defendant's sentence beyond the
ordinary or standard term authorized by the jury's verdict.  Act 1's amendments
conformed the State's enhanced sentencing law to the requirements of the United
States Supreme Court and the Hawaii supreme court.  Act 1 applied retroactively
to sentencing or resentencing proceedings that were pending on or commenced
after its effective date [October 31, 2007], whether the offense was committed
prior to, on, or after that date.  However, the Act did not entitle a defendant
who was previously sentenced to an extended term of imprisonment to
resentencing pursuant to the procedures set forth in the Act, unless the
defendant was otherwise legally entitled to be resentenced.  Senate Standing
Committee Report No. 7, House Standing Committee Report No. 1.

__________

§§706-661 and 662 Commentary:

1.  M.P.C., Tentative Draft No. 2, comments at 41-42 (1954).