§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 written notice of the ground proposed was given to the
defendant pursuant to subsection (2).  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 right to a jury determination under
this subsection, in which case the determination shall be made by the court.



(2)  Notice of intention to seek an extended
term of imprisonment under section 706-662 shall be given to the defendant
within thirty days of the defendant's arraignment.  However, the thirty-day
period may be waived by the defendant, modified by stipulation of the parties,
or extended upon a showing of good cause by the prosecutor.  A defendant
previously sentenced to an extended term under a prior version of this chapter
shall be deemed to have received notice of an intention to seek an extended
term of imprisonment.



(3)  If the jury, or the court if the defendant
has waived the right to a jury determination, finds that the facts necessary
for the imposition of an extended term of imprisonment under section 706-662
have been proven beyond a reasonable doubt, the court may impose an
indeterminate term of imprisonment as provided in section 706-661. [L 1972, c
9, pt of §1; am L 1986, c 314, §42; gen ch 1992; am L Sp 2007 2d, c 1, §4]



 



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."



 



COMMENTARY ON §706-664



 



  This section sets forth the procedure when the court has
before it a motion in favor of sentencing the defendant to imprisonment for an
extended term.  Fairness to the defendant demands that the defendant receive
notice of the ground upon which an extended term is proposed and that the
hearing focus on this issue.  In other respects the hearing will be the same as
that provided for in cases involving the possibility of imprisonment within the
ordinary limits.



 



SUPPLEMENTAL COMMENTARY ON §706-664



 



  Act 1, Second Special Session Laws 2007, amended this section
and other extended sentencing statutes (§§706-661 and 706-662) 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.



 



Case Notes



 



  Question as to proper procedure for making finding of
multiple offender raised but not decided.  56 H. 32, 526 P.2d 1200.



  Independent hearing with full procedural due process.  56 H.
628, 548 P.2d 632.



  Notice of hearing may issue from court without help from
prosecutor.  60 H. 93, 588 P.2d 412.



  The court may properly initiate extended term hearings,
notwithstanding inaction by prosecutor.  60 H. 100, 588 P.2d 409.



  Notice adequate under circumstances.  63 H. 488, 630 P.2d
619.



  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, 706-662, 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. 



  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, 706-662, 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.